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Wednesday, July 1, 2015

Sec.433(e), 434(1)(a) and sec.439(1)(b) of Companies Act - Company Petition to wind up the company for non-payment of it's Debt - statutory notice was served on the respondent at its administrative office address instead of at its registered office address - Their Lordship held that as the Statutory notice not served at its Registered Office Address as contemplated in Section 433(e) of the Act read with Section 434 (1) (a) of the Act - the company petition is dismissed with liberty to file fresh Company petition after serving notice at Registered Office Address - 2015 Telangana & A.P. msklawreports




This company petition is filed under Sections 433(e), 434 (1) (a)
and 439(1)(b) of the Companies Act, 1956 (for short the Act) for an
order to wind up the respondent company for non-payment of the debt
allegedly due to the petitioner.

  It is the pleaded case of the petitioner that the respondent failed to
pay the debt due to it and therefore, the former is liable for non-payment
of the debt.
      Section 433 (e) of the Act reads as under:
       433. A company may be wound up by the Court
       (a)
       (b)
       (c)
       (d)
       (e) if the company is unable to pay its debts;

      Section 434(1)(a) of the Act reads as under:
       434 (1) A company shall be deemed to be unable to pay
its debts-
        (a) if a creditor, by assignment or otherwise, to whom the
company is indebted in a sum exceeding five hundred rupees then
due, has served on the company, by causing it to be delivered at
its registered office, by registered post or otherwise, a demand
under his hand requiring the company to pay the sum so due and
the company has for three weeks thereafter neglected to pay the
sum, or to secure or compound for it to be reasonable satisfaction
of the creditor;

the
statutory notice was served on the respondent at its administrative office
address instead of at its registered office address, which is shown in the
company petition.

As rightly submitted by the learned counsel for the
respondent, a winding up petition under Section 433(e) of the Act read
with Section 434 (1) (a) of the Act can be maintained only if the two
requirements of the latter provision are satisfied, viz.,
 (1) service of
statutory notice on the respondent company at its registered office
address and
(2) non-payment of the alleged debt by the respondent at
least for a period of 21 days after receipt of such notice.
  In view of the
admitted fact that no such notice on the registered office address of the
respondent has been served, the petitioner failed to satisfy the provisions
of Section 434 (1)(a) of the Act.
The company petition is, therefore, liable
to be dismissed without dealing with the merits of the contentions raised
by both the parties.
Held that
      The Company Petition is accordingly dismissed, however, with
liberty to the petitioner to serve a notice on the registered office address
of the respondent company and file a fresh company petition, if the
respondent fails to pay the debt claimed by it, as required under Section
434 (1) (a) of the Act.

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