The main legal point established in the judgment is the significance of causing the notice to be delivered at the registered office and the legal implications of the deeming fiction under Section 434(1)(a) of the Companies Act, 1956.

Prathiba M. Singh, J.

1. The short question that arises in this case is as to whether the notice of winding up under Sections 433/434 of Companies Act, 1956 (for short ‘the Act’) was duly served upon the Respondent or not.

2. The present appeal arises out of the judgment of the learned Single Judge dated 6th December, 2013 by which the company petition filed by the appellant/HDFC bank (‘appellant’, for short) was dismissed on the ground that the winding up notice was not properly served on the Respondent. Brief Background

3. It is the case of the appellant that on 25th October, 2007 the respondent Company was sanctioned fund based credit facility to the extent of Rs.150 lakhs and non-fund based credit facilities to the extent of Rs.950 lakhs and foreign exchange (‘FOREX’, for short) cover limit of Rs.95 lakhs, with an aggregate limit of Rs.1100 lakhs. In order to avail these facilities, the respondent executed security documents, including a master credit facility agreement dated 30th October 2007, demand promissory notes for the sum of Rs.4 crores, Rs.9.5 crores, Rs.1.5 crores, Rs.1.10 crores and Rs.95 lakhs, letter giving a lien on fixed deposit receipts (‘FDRs’, for short) of Rs.60 lakhs and Rs.95 lakhs and the hypothecation agreement of goods, vehicle, plant and machinery and book debts for Rs.1100 lakhs. The directors of the respondent Company also executed a deed of guarantee and another deed of corporate guarantee was executed by M/s Prem Softech Pvt. Ltd. Various properties belonging to the company M/s Prem Softech Pvt. Ltd., which is a group company of the respondent, were also mortgaged. From time to time various other securities including reiteration of creation of mortgage, assignments of lease, rentals etc. were executed.

4. The respondent defaulted in its repayments to the appellant and according to the appellant it was unable to pay its debts. The account of the respondent was declared as a Non Performing Asset (‘NPA’) by the appellant. On 15th September 2010, the Appellant issued a recall notice calling upon the respondent to pay a sum of Rs. 6,01,35,890.68 together with future interest and costs and further sum of Rs.19,17,841 and Euros 2,65,427.30. All these amounts were due and payable according to the appellant. Since the payments were not forthcoming, the appellant approached the Debt Recovery Tribunal (‘DRT’), which case is pending adjudication. It is the case of the appellant that on 3rd May, 2010 the respondent admitted its liability in a proposed onetime settlement letter. The settlement proposal was, however, rejected by the appellant. The appellant treated this onetime settlement offer as an admission of liability by the respondent. It issued a winding up notice dated 1st October, 2012 which was followed up with another winding up notice dated 11th December, 2012. Having elicited no response to the said notices, the appellant filed the winding up petition before this Court registered as Company Petition No. 63 of 2013 on 28th January, 2013. An interim order was passed in the Company Petition No. 63 of 2013 on 15th February, 2013, restraining the respondent from creating any charge, alienating, transferring, parting of possession of any of the immovable assets and certain other directions were also passed directing the filing of affidavit by the Managing Director of the respondent. On 1st May 2013, despite the respondent being served, since there was no appearance, the Company Court proceeded further and appointed Provisional Liquidator. This order was challenged in appeal by the Respondent and the matter was remanded to the Company Judge by the Division Bench on 11th September, 2013.

5. An application being Co. Appl. 2126/2013, seeking vacation of the orders dated 15th February, 2013 and 1st May, 2013, was filed before the learned Company Judge. On hearing this application, the learned Single Judge passed the impugned order dismissing the company petition, on the ground of failure and non-servic