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
       (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;

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.


Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Or.18, rule 17 and sec.151 C.P.C - petition filed for reopen and examination of the executant of Ex.A1 the sale deed to fill up the lacuna in evidence pointed out at the time of arguments not maintainable = Shaik Gousiya Begum. ..Petitioner Shaik Hussan and others.... Respondents = Published in

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.