Statutory demand notice must reach the registered office before deeming inability to pay debts can support winding-up

A winding-up petition based on the deeming fiction of inability to pay debts could not be sustained unless the statutory demand notice under section 434 was delivered at the company's registered office. The provision allowed flexibility in the mode of service, but not in the place of delivery. Rule 33 of the Companies (Court) Rules, 1959 could cure defects in service under the Rules, but it could not override the mandatory statutory requirement. Because the petition relied only on the deeming fiction and did not plead sufficient particulars of actual inability to pay, the absence of valid service at the registered office was fatal.

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Issues: Whether a winding-up petition based on the deeming fiction of inability to pay debts could be sustained when the statutory demand notice under section 434 was not delivered at the company's registered office, and whether rule 33 of the Companies (Court) Rules, 1959 could cure that defect.

Analysis: The statutory fiction under section 434 arises only if the creditor serves a demand by causing it to be delivered at the registered office of the company. The provision permits flexibility only as to the mode of service by registered post or otherwise, but not as to the place of delivery. Rule 33 is confined to defects or irregularities in service under the Companies (Court) Rules and cannot override the mandatory requirement embedded in section 434. Since the petition rested solely on the deemed inability to pay debts and did not plead sufficient particulars of actual inability to pay, the absence of valid service at the registered office meant that the statutory fiction was not available.

Conclusion: The defect was fatal to the winding-up petition. The demand notice not having been served at the registered office, the petition could not be sustained on the statutory deeming fiction, and the appellant succeeded.

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