Rules 27, 28, 29, and 31 of the Companies (Court) Rules, 1959, which provide for the service of notice upon the company, are mandatory and apply to winding-up petitions. There is no provision for "deemed service" in the Companies (Court) Rules, 1959.

Headnote:
COMPANY - WINDING-UP - NOTICE - SERVICE - RULES 27, 28, 29 AND 31 OF THE COMPANIES (COURT) RULES, 1959 - APPLICABILITY - EFFECT OF NON-COMPLIANCE - DEEMED SERVICE - RULES 95 AND 96 OF THE COMPANIES (COURT) RULES, 1959 - INTERPRETATION.
Fact of the Case:

The Company, Modern Dekor Painting Contracts Pvt. Ltd., failed to deposit a sum of Rs. 50,000 within the stipulated time as ordered by the court. The Petitioning Creditors obtained a certificate of non-deposit and published an advertisement for the winding-up of the Company. The Company was not served with an individual notice, and an ex parte order for winding-up was passed. The Company filed a Judge's Summons to set aside the ex parte order, which was dismissed.
Finding of the Court:

The court held that Rules 27, 28, 29, and 31 of the Companies (Court) Rules, 1959, which provide for the service of notice upon the company, are mandatory and apply to winding-up petitions. The court found that the advertisement published in the newspapers and the Government Gazette did not constitute service upon the Company. The court also held that there is no provision for "deemed service" in the Companies (Court) Rules, 1959.
Issues: 1. Whether Rules 27, 28, 29, and 31 of the Companies (Court) Rules, 1959, apply to winding-up petitions. 2. Whether the advertisement published in the newspapers and the Government Gazette constituted service upon the Company. 3. Whether there is a provision for "deemed service" in the Companies (Court) Rules, 1959.
Ratio Decidendi: 1. The court interpreted Rules 27, 28, 29, and 31 of the Companies (Court) Rules, 1959, and found that they apply to winding-up petitions. The court held that the language of the rules is clear and unambiguous and that there is no exception for winding-up petitions. 2. The court held that the advertisement published in the newspapers and the Government Gazette did not constitute service upon the Company. The court found that the rules make a distinction between service of notice and the issuance of advertisements and that the advertisement cannot be deemed to be service upon the Company. 3. The court held that there is no provision for "deemed service" in the Companies (Court) Rules, 1959. The court found that the rules provide a complete and comprehensive framework for the service of notice upon the company and that there is no room for any implication of "deemed service."
Final Decision: The court allowed the appeal, set aside the order dismissing the Judge's Summons, and made the Judge's Summons absolute in terms of prayer (a). The court also directed that Company Petition No. 221 of 1977 be placed on the Board of the learned Company Judge for hearing and final disposal.

JUDGMENT - Rele B.J.J.-This is an appeal against the order dated 27th.January, 1982 dismissing Company Application No. 204 of 1981 in Company Petition No. 221 of 1977, taken out by the Company-Modern Dekor Painting Contracts Pvt. Ltd. for setting aside the ex parte order passed on 24th June, 1981 ordering the Company to be wound up and for restoring to file the said Com-pany Petition No. 221 of 1977 for winding-up for being heard on merits.

2. A few facts necessary for determination of the question in this appeal are that the said Company Petition No. 221 of 1977 was preferred by the Petitioning Creditors Jenson Nicholson (India) Ltd. for winding-up of the Company on the ground that Modern Dekor Painting Contracts Pvt. Ltd. (Hereinafter referred to as “the company”), was unable to pay its debts as and when they became due. It appears that the said petition was accepted and on 5th December, 1977, the petition was placed on board for admission. The Company appeared on an intimation having been received from the Petitioning Creditors' Advocate that the petition would be placed on board for admission. The Company also opposed the admission of the petition toy filing an affidavit. However, on 5th December, 1982 an order was passed as follows : -

“In the event of the Respondent Company depositing in Court a sum of Rs. 50,000 (Rupees fifty thousand) within twelve weeks from to-day, the petition to stand dismissed. If such deposit is made, then :

(a) the Company's Advocates to forthwith intimate to the Protho-notary and Senior Master and the Petitioners' Advocates the fact of such deposit,

(b) the petitioner to be at liberty to file a suit or counter claim in the appropriate Court for recovery of the amount in petition due to the petitioner, such suit or counter-claim to be filed within 8 weeks of the date of intimation that'such deposit has been made.

(d) the Prothonotary Senior Master to invest the amount so deposited under the directions of the Court. If no such suit or counter- claim is filed by the petitioner within the said period, the Company to be at liberty to withdraw the amount deposited.

In the event of the Company failing to deposit the said amount within the said period the petition do stand admitted, and be advertised in the Maharashtra Government Gazette, Indian Express and Mumbai Samachar. The petition to come up for hearing four weeks after the date of the advertisement.”

Twelve weeks time for making the deposit expired on 5th March, 1978 and the Company failed to make the requisite deposit. Nothing happened for the period of nearly two years and one month and it was for the first time on 24th April, 1980 that an application was made on a precipe to the Protho-notary and Senior Master of this Court for issuance of a certificate of non-deposit. Pursuant to the said application, the Prothonotary and Senior Master issued a certificate of non-deposit on 26th March, 1981, i.e. nearly eleven months after the application. After obtaining the said certificate, the Petitioning Creditors, through their Advocates submitted a draft of adver-tisement to the Prothonotary and Senior Master for fixing a date of hearing. On 22nd May, 1981 the advertisement was published in the Bombay Sama-char, on 4th June, 1981 in Indian Express and on 4th June, 1981 in the Official Gazette. On 18th June, 1981 the Petitioning Creditors' Advocate submitted a precipe to the Prothonotary and Senior Master for placing the Winding-up Petition on board on 24th June, 1981. Accordingly, on 24th June, 1981 the petition for winding-up was placed on board. On that day the Company was absent and an ex parte order for winding-up of the Company was passed. On 15th July, 1981 a representative of the Official Liquidator went to the residential premises of Jehangir Homi Gora, a Director of the Company and it was only then that the Company became aware of the Winding-up

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