A winding up petition cannot proceed if the statutory notice is not validly issued to the company as required by Section 434 of the Companies Act, 1956.

JUDGMENT :

BIREN VAISHNAV, J.

1. This OJ Appeal has been filed by the original petitioner Ambica Ginning Pressing Pvt. Ltd. challenging the oral order dated 15.10.2013 passed by the learned Single Judge, by which, the Company Petition filed by the appellant was dismissed.

2. Facts in brief are as under:

2.1 The appellant company registered under the Companies Act, 1956, (‘the Act’ for short) approached this Court by filing a petition under Sections 433 and 434 of the Act. It was the case of the appellant company that since the respondent company was in need of financial help and as one of the directors of the petitioner company was also one of the directors of the respondent company, financial help of Rs.1.25 crores was given by way of seven different cheques on 01.04.2004 and 31.03.2005. It was a case of the appellant company that out of the said amount, only Rs.35 lakhs has been repaid by the respondent company. According to the appellant therefore since the respondent company had not paid the outstanding dues, it was unable to pay its debts and the appellant filed the captioned company petition after giving a statutory notice under the provisions of the Act.

3. After hearing learned counsel for the respective parties, the learned Single Judge dismissed the petition holding that the legal notice dated 05.04.2010 as well as notice dated 19.04.2010 were not notices in compliance of provisions of Section 434 as the notices were defective and it was not the company who has given such notices but an individual Mr.N.P.Patel and similarly the recipient of the notice were also individuals who were described as Directors and it was not to the respondent company.

4. On the second aspect, the learned Single Judge held that the petition involved disputed questions of facts and therefore it was not possible to reach to a conclusion that the amount which the appellant claims has, in any manner and in any terms become due and payable.

5. Mr.Godiawala learned counsel for R.C. Jani & Associate learned advocates for the appellant made the following submissions:

5.1 Taking us through the order of the learned Single Judge, and thereafter reading the notices dated 05.04.2010 and 19.04.2010, Mr.Godiawala learned counsel for the appellant would submit that the learned Single Judge committed an error in holding that the notices were issued by the individual and not the company. Mr.Godiawala would submit that reading the notice as a whole clearly indicated that the notice in fact was issued after the resolution authorizing Shri Narsinhbhai Patel was passed by the company and the notice therefore categorically pointed out that amounts were due and payable to the company Ambica Ginning Pressing Pvt. Ltd. from the respondent Eureka Tiles Ltd. The notice was therefore in compliance with the statutory provision, particularly Section 434(1)(a), 434(1)(c) of the Act.

5.2 Mr.Godiawala would submit that the unjustified emphasis by the learned Single Judge on the language of the notice “My client Narshibhai Patel and such emphasis highlighted by the learned Single Judge to conclude that the notice was given by an individual Narshibhai Patel and not the petitioner company is clearly misconceived.

5.3 Mr.Godiawala would further submit that the finding of the learned Single Judge that there was non-compliance as the notice was not served on the respondent company, but to the Directors of the company is misconceived and must therefore be set aside.

5.4 Mr.Godiawala would further submit that the learned Single Judge had inherently contradicted himself in ousting the petitioner from this preliminary ground and then while going into the merits held that even on merits the appellant had no case and the finding of the the learned Single Judge that since the disputed questions are involv