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IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN, J.
M/S ARROMA CHEMICALS - Petitioner
versus
M/S. GATEWAY SPECIALITY PAPERS LTD. & ANR. - Respondents
CO.PET. 249/2006
Decided on: 8th December, 2011
Winding Up Petition - Companies Act, 1956 - Section 433(e), 434, 439 - The court discussed the admission of debt by the respondent company, the service of statutory winding up notice, and the principle of waiver of right to receive notice at the registered office.
Fact of the Case:
The petitioner filed a winding up petition under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956, stating that the respondent company was unable to pay its debts amounting to Rs.2,38,160. The respondent company had admitted the debt in a letter and the petitioner had issued a statutory winding up notice.
Finding of the Court:
The court found that the respondent company had admitted the debt and that the petitioner had properly served the statutory winding up notice as per the respondent's request for correspondence.
Issues: The issues involved the admission of debt, service of statutory winding up notice, and the respondent company's contention regarding the same.
Ratio Decidendi: The court held that the admission of debt by the respondent company and the service of statutory winding up notice were valid. It also applied the principle of waiver of the right to receive notice at the registered office based on the respondent's request for correspondence.
Final Decision: The respondent company was granted eight weeks to pay the debts, and if not paid, the petition would stand admitted and the petitioner would be entitled to publish citations in the newspapers.
MANMOHAN, J : (Oral)
1. Present winding up petition has been filed under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 (for short ‘Act’) stating that the respondent no.1-company is unable to pay its debts allegedly amounting to Rs.2,38,160/-.
2. It is the petitioner’s case that on 18th March, 2004 respondent no. 1-company placed a purchase order on the petitioner for supply of paper dyes. According to petitioner, as its invoices were unpaid for a long period of time, it requested the respondent no. 1-company to make the payment. Learned counsel for the petitioner has also drawn the attention of this Court to the petitioner’s own ledger account at page 23 of the paper book.
3. On 15th April, 2004, respondent no. 1-company requested the petitioner to send complete statement of accounts for the financial year 2003-2004 in respect of all its group companies at its head office at C55, Wazirpur Industrial Area, New Delhi – 110 052.
4. On 16th November, 2004, respondent no. 1-company informed the petitioner that its management had been taken over by M/s. Shree Shyam Pulp & Board Mills Ltd. By this letter, respondent no. 1company confirmed that an amount of Rs.2,38,160/-was due and payable to the petitioner as on 26th July, 2004 and that the said amount would be paid by the new management. This letter was signed on behalf of respondent no. 1-company by its Director Mr. Narendra Kumar Goyal.
5. On 11th March, 2005, M/s. Gateway Industries Ltd. wrote to petitioner stating that it had been operating from its corporate office at 4806/24, Bharat Ram Road, Darya Ganj, New Delhi – 110 002 and that all future communications with regard to Gateway group companies should be sent at the said address only.
6. On 18th June, 2005, M/s. Gateway Industries Ltd. wrote another letter to the petitioner stating that it had handed over total management of two companies, namely, M/s. Gateway Specialty Papers Ltd. and M/s. Gateway Coated Papers (P) Ltd. to M/s. Shree Shyam Pulp & Board Mills Ltd. and in view of the same, petitioner should contact the new management for payment of its dues.
7. On 27th June, 2005, petitioner wrote back to respondent no.1-company stating that though they contacted M/s. Shree Shyam Pulp & Board Mills Ltd. for payment, yet they had not received any payment till date.
8. Consequently, on 20th July, 2005, the petitioner issued a statutory winding up notice under Section 434 of the Act to respondent no. 1-company. The said notice was dispatched to respondent no.1-company’s office at C-55, Wazirpur Industrial Area, Delhi – 110 052 as well as at 4806/24, Bharat Ram Road, Darya Ganj, New Delhi. However, as no response was received to the statutory notice, petitioner filed the present winding up petition.
9. Mr. Deepak Kumar Vijay, learned counsel for the respondent no.1-company submitted that the present winding up petition was not maintainable as no statutory winding up notice had been served by the petitioner upon respondent no.1-company’s registered office. In this connection, he relied upon three Form No. 18 dated 15th May, 2004, 19th July, 2004 and 2nd December, 2004 to show that the respondent no.1-company had initially shifted its registered office w.e.f. 25th April, 2004 from 4806/24, Bharat Ram Road, Ansari Road, Darya Ganj, New Delhi to C-55, Wazirpur Industrial Area, Delhi and thereafter w.e.f. 19th July, 2004 to A-257, Road No. 6, Mahipal Pur Extn., New Delhi and lastly w.e.f. 20th November, 2004 to A-416A, Road No. 6, Mahipal Pur Extn., New Delhi. According to Mr. Vijay, as the winding up notice had not been served upon the respondent no.1-company at its last registered office, the fiction as enumerated under Section 434 of the Act was not attracted to the present case. In this connection, he relied upon a judgment of this Court in State Black Sea Shipping Company Vs. M/s. Viraj Overseas Pvt. Ltd., (2003) VAD (Delhi) 187.
10. Mr. Vijay further submitted that there was no admission of de
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