2000 (8) TMI 1055

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....the provisions of section 434(1)(a), which is being extracted hereunder : "Company when deemed unable to pay its debts (1) A company shall be deemed to be unable to pay its debts - ( a) If a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;" 3. Section 434(1)(a) undoubtedly requires that a creditor must cause notice to be served on t....

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....unless the contrary is proved. In the instant case, by the endorsement made on the communication despatched to the respondent, it is clear that the notice sent by the petitioner to the respondent did not reach the respondent. Whether it did not reach the respondent fairly or unfairly is not for this Court to examine. Accordingly, even within the meaning of section 27 extracted above, in my view, it cannot be held that the registered communication sent by the petitioner to the respondent stood served on the respondent in the facts and circumstances of the instant case. 5. The learned counsel for the petitioner then relied upon K. Bhaskaran v. Sankaran Vaidhyan Balan [2000] 99 Comp. Cas. 268 (SC), wherein the Apex Court examined a controve....

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....the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice." (p. 274) 6. The first thing that must be noticed is that the matter examined by the Apex Court in the aforesaid judgment was under the Negotiable Instruments Act, 1881, specifically under section 138 thereof. Clause (b) of proviso to section 138, provides as under: "138(a) ****** (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and..." 7. It is cl....