ORDER

The present petition under Section 433 of the Companies Act, 1956 has been preferred for winding up of respondent/company in lieu of failing and neglecting to pay a sum of Rs.2,24,55,236.64/-, which was an amount outstanding for the supplies and interest thereupon up-to 30.11.2015 @ 18% per annum, which had resulted it being commercially insolvent and having no means to pay its liability.

2. The facts of the case in nutshell are that the respondent No.1/company was engaged in the business of electric cables and wires, PILC cables, PVC power cables, thermal plastic insulated cables and flexible for domestic and industrial wiring, elastomer insulated cables and generally all kinds of cables. In context to the aforesaid, the respondent No.1/company had dealings with the petitioner and was purchasing PVC compounds of different grades from time to time from its units situated at Delhi.

3. Pursuant to the orders placed by the Company, the petitioner for the period 10.02.2013 to 31.07.2014 had supplied PVC compounds of different grades from its factory situated at Delhi to the Company through various roadways. The company had duly received the goods supplied without any complaint and utilized the same for their benefit. The Respondent No.1 Company used to make payments towards the outstanding amounts and last payment of Rs.5,75,000/- was made towards the outstanding bills on 14.08.2014, but thereafter the Respondent No.1 Company did not make any payment for the invoices raised for the goods supplied and cumulatively a sum of Rs.1,87,90,993/- became due and payable exclusive of interest against the goods supplied by the petitioner.

4. Since the payment in respect of the aforesaid invoices for the goods supplied was to be made within the period of 90 days from the date of invoices/bills, but was not paid, as per the terms, the respondent company became liable to pay interest @ 18 % per annum on the aforesaid amount and when on repeated requests, the payment was not made, a legal notice dated 14.07.2015 was sent by the petitioner through its Advocate calling upon the respondent company to pay a sum of Rs.1,87,90,993/- along with interest @ 18% per annum until realization. The said notice was sent to the registered office by Speed Post with acknowledgment on 15.07.2015 and it was duly served upon the respondent No.1 company on 17.07.2015. Even after the service of the statutory notice, since the respondent No.1/company had deliberately failed and neglected to pay its debts, therefore, the present winding-up petition was preferred alleging that respondent No.1/company since was unable to pay its debts and liabilities is required to be wound up and the debts of the petitioner company be recovered.

5. Vide order dated 24.08.2016, notices were directed to be issued to respondent No.1/company and vide Office note dated 26.10.2016, it is revealed that notice of respondent No.1 received back un-served due to un-availability and it was vide order dated 02.11.2016 that the permission was sought on behalf of the petitioner to serve the notice on respondent No.1 company by way of publication which was allowed and this Court had directed the petitioner to serve notice on respondent No.1 company through publication in newspapers having wide circulation i.e. Dainik Bhaskar and Nai Duniya.

6. Admittedly, the petitioner got notice published in Dainik Bhaskar newspaper in the edition of 23.12.2016.

7. A vakalatnama was filed on behalf of respondent No.1 on 20.09.2019. Immediately, on behalf of respondent No.1/company, I.A. No.3941 of 2019, was moved for dismissal of the present winding-up petition on the grounds as under:

7.1. As per the Rule 26 of the Companies (Court) Rules, 1959, notice of every petition was required to be served upon the respondent and it was a mandatory compliance and though the notice alleged to be served upon the respondent No.1 company was effected through publication in newspaper dated 23.12.2016, in the light of notification da