SANJIB BANERJEE,J. - (1.) THE company takes a preliminary objection that no presumption arises in this case of the company's inability to pay its debts since no notice was issued by the petitioning creditor at the registered office of the company and, on the basis of the petition, it would be evident that the two other limbs of Section 434(1) of the Companies Act, 1956 are not attracted. Upon this creditor's petition for winding up the company being served on the company, affidavit directions were issued on November 29, 2011. The company indicated on such date that the petition was not maintainable in the absence of any statutory notice having been issued. However, on February 8, 2012, the parties agreed that the petition would remain adjourned sine die but the petitioner would be entitled to seek inclusion of the petition in the list upon a default being made by the company in CP No. 592 of 2011 in making payment to the petitioner in such proceedings in terms of the order passed in CP No. 592 of 2011 on the same day. Simultaneously, a concession was recorded on behalf of the petitioning creditor that if the company in CP No. 592 of 2011, Ramsarup Industries Limited, did not make default in making payment in terms of the order passed in CP No. 592 of 2011, the petitioner herein would take no further steps in the criminal proceedings launched against the directors and officers of this company in Gurgaon. Ramsarup Industries Limited has defaulted in making payment in terms of the order passed on February 8, 2012 in CP No. 592 of 2011. Consequently, the petitioner herein has caused this matter to be taken up for hearing.
(2.) IT is the admitted position that the present petition is founded on a notice dated May 28, 2010 addressed to the company and three of its directors and captioned as a notice under Section 138(b) of the Negotiable Instruments Act. The notice, issued by advocate representing the petitioner, did not refer to the Companies Act but demanded payment of a principal sum in excess of Rs.4 crore together with interest thereon within 15 days of the receipt of the notice and warned of legal action being initiated in default of the payment being made as demanded. The notice was issued to the erstwhile registered office of the company at 12A Netaji Subhas Road, Kolkata. In the cause title relating to this petition, the petitioner has indicated the registered office of the company to be at 18/1 Maharshi Debendra Road, Kolkata 700 007. The company says that paragraph 17 of the petition makes it clear that the creditor's action is founded on the notice of demand issued at the registered office of the company since it has been pleaded "that a period of more than three weeks has elapsed since the service of its notice of demand upon the respondent, for the amounts due and owing to it." It, however, does not appear from the body of the petition that the notice of May 28, 2010 is claimed to be the statuary notice as paragraph 13 of the petition speaks of several notices of demand being made on the company and copies of the several notices, including the notice of May 28, 2010, are appended collectively as annexure F to the petition. The petitioner says that it would be evident from the several letters, copies whereof have been disclosed in the pleadings, that notwithstanding the registered office of the company having apparently been shifted from Netaji Subhas Road to Maharshi Debendra Road in February, 2009, the letter-head of the company in letters issued as late as in November, 2009 showed that its registered office was at Netaji Subhas Road and the one at Maharshi Debendra Road was only as administrative office. The petitioner refers to Section 147(1)(c) of the Act to suggest that it is incumbent on a company to have its registered office mentioned in all its business letters and the failure by a company to comply with such provision visits the company with a fine which may extend to Rs.5000.00. The petitioner insists that in the wake of the mandatory provision of Section 147(1)(c) of the Act and the company's false representation in letters issued by it several months after the alleged change of its registered office, the preliminary point urged by the company should be brushed aside. The petitioner asserts that the nature of the claim, the dishonour of cheques issued by the company and the complete lack of defence to the claim should prompt the court to infer the inability on the part of the company to pay its debts even if no notice under Section 434(1)(a) of the Act has been issued at the registered office of the company.
(3.) THE petitioner suggests that merely because a notice has not been issued by a petitioning creditor to the registered office of the company would not disentitle the creditor from seeking winding up of the company by relying on the legal fiction in Section 434(1)(a) of the Act. According to the petitioner, as long as there is a valid claim and the company is notified in writing thereof and the company fails to discharge the debt without there being any reasonable cause for not so doing, the company court is empowered to infer the company's inability to pay its debts by virtue of clause (a) of Section 434(1) of the Act.;