TaxTMI 
TaxTMI 
2010 (12) TMI 1053
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....ions of the Act. 3. The application raises two contentions. Firstly, the statutory notice under section 434(1)(a) of the Act was not served at the registered office of the respondent-company and was returned back with the remark "closed office" and therefore, presumption under the said section does not arise. Secondly the respondent-company was not served with the notice of hearing in the winding up petition. It was the duty of the petitioner to serve the respondent-company. It is stated that consortium of banks have filed O.A. No. 186/1999 before the Debt Recovery Tribunal- II and the petitioner herein has filed an application under Order XXII, Rule 10 and Order VI, Rule 17 of the Code of Civil Procedure, 1908 and section 19(25) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for being substituted in place of ICICI on the basis of Deed of Assignment which is pending. It is contended that notice on the winding up petition could have been served on the counsel who were appearing on behalf of the respondent-Company before the Debt Recovery Tribunal-II. It is further alleged/contended that the respondent No. 2 was not available at the two addresses mentioned ....
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....f the respondent-company and respondent No. 2. However the respondents did not make the payments. Along with the petition, copies of the receipts issued by the post office for having posted the notice dated 27-9-2006 have been enclosed. The postal receipts show that notices were issued by registered post at the registered office of the respondent-company at Karampura, Delhi and to respondent No. 2 at 12, Vaishali, Pitampura, Delhi - 88 and at 9/83, Punjabi Bagh (West), New Delhi - 110026. 6. After filing of the petition, objection was raised by the Registry as the petitioner had failed to file proof of service of demand notice under section 434(1)(a) of the Act. The matter was listed before the Court subject to office objections on 23-3-2007. On the said date, the matter was adjourned at the request of the counsel for the petitioner to 23-4-2007. The petitioner thereafter filed the original envelope by which notice dated 27-9-2006 was sent to the registered office of the respondent-company. The original envelope has a report/remark dated 28-9-2006 of the postal authorities "closed office". On 23-4-2007, the court issued notice to the respondent-company returnable on 27-7-2007. T....
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....34(1)(a) has to be read along with section 51 of the Act which reads : "51. Service of documents on company.-A document may be served on a company or an officer thereof by sending it to the company or officer at the registered office of the company by post under a certificate of posting or by registered post, or by leaving it at its registered office: Provided that where the securities are held in a depository, the records of the beneficial ownership may be served by such depository on the company by means of electronic mode or by delivery of floppies or discs." [Emphasis supplied] 11. The contention of the respondent-company is that there is non-compliance of section 434(1)(a) of the Act as the statutory notice was not delivered, in the sense that they could not be actually or physically served at the registered office address, and therefore the deeming effect of the said provision is not applicable. A similar contention is raised about service of notice issued for the court hearing at the registered office. 12. As stated above, the original envelope by which the statutory notice dated 27-9-2006 under section 433(e)/434(1)( a) of the Act was sent by registered post has....
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....vice must be affected by delivering notice at the registered office through registered post or some other means requiring the company to discharge the debt. In the said case, finding was that the statutory notice sent by the petitioner therein did not reach the respondent-company. Decision in the case of K. Bhaskaran v. Shankaran Vaidhyan Balan AIR 1999 SC 3762 referring to section 27 of the General Clauses Act, 1897 and provisions of section 138 of the Negotiable Instruments Act, 1881, relating to proof of service was distinguished as the requirement under the Negotiable Instruments Act was/is only giving of notice, whereas the Act (i.e., the Companies Act, 1956) requires delivery of notice. In the case of Nuchem Ltd. (supra), the Punjab & Haryana High Court did not examine the effect of section 51 of the Act i.e., regarding service of a document on a company. The last para of the said judgment shows that the petitioner therein had approached the Registrar of Companies and had been informed about the latest registered office address of the company therein. Notice was not served at the said address. Bombay High Court has taken a different view in Deepak Machineries (P.) Ltd., In re....
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....n and it is for his interest the very provision is made by the Legislature. The words in clause (b) of the proviso to section 138 of the Act show that the payee has the statutory obligation to "make a demand" by giving notice. The thrust in the clause is on the need to "make a demand". It is only the mode for making such demand which the Legislature has prescribed. A payee can send the notice for doing his part for giving the notice. Once it is dispatched his part is over and the next depends on what the sendee does. 22. It is well-settled that a notice refused to be accepted by the addressee can be presumed to have been served on him (vide Harcharan Singh v. Shivrani and Jagdish Singh v. Natthu Singh) 23. Here the notice is returned as unclaimed and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to section 27 of the General Clauses Act will be useful. The section reads thus: '27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'ser....
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....een observed as under:- "That apart, in the present case, it has been averred in the company petition that the statutory notice was addressed to the registered office of the company as stated in the records of the Registrar of Companies, Maharashtra (Registrar of Companies). The petitioner obtained a certified copy from the record of the Registrar of Companies with regard to the registered office address of the company. However, the notices having been remitted on the address of the registered office as shown in the record of the Registrar of Companies, all notices came back with the remark "not known". The affidavit in reply does not proceed on the basis that the address mentioned in the statutory notice is not the registered office of the company. In a judgment of the Delhi High Court in Hotline Teletubes and Components Ltd. v. A.S. Impex Ltd. [2004] 119 Comp. Cas. 98 ; [2004] 49 SCL 590 , Dr. Justice Mukundakam Sharma (as he then was) dealt with a case where a statutory notice addressed to the registered office of the company was returned with the remark that the addressee had left the premises. The Delhi High Court held that the documents which were placed on the record indi....
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....8. It is also apparent on the face of the records that the cheques were issued by the respondent as against the outstanding balance which were dishonoured by the bank on their presentation. 7. The first objection that is raised is with regard to the maintainability of the company petition on the ground that the statutory notice as required under the provisions of the Companies Act was not served on the respondent-company. The documents placed on record, however indicate that the petitioner sent the statutory notices to the respondent at the address at which the registered office of the respondent was located. But in the meantime the respondent changed the address of its registered office. Therefore, the statutory notices sent by the petitioner were not served on the respondent-company. It is stated by the Counsel appearing for the respondent that the respondent gets 30 days' time to take steps for intimating the change of address of its registered office to the Registrar of Companies. Section 146(2) of the Companies Act provides for 30 days' time to a company to inform the Registrar of the Companies to submit the statutory form intimating change of the address of the registered ....
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....he reservation/doubt about certificate of posting as expressed in several cases). The section 51 prescribes the mode and manner of service of a document. The document which includes notice under section 434(1)(a) of the Act may be treated as served if it is 'sent' in the manner specified under section 51 of the Act. As per section 51, leaving a document at the registered office of a company is sufficient service. Registered office of a company is to be designated and informed to the Registrar of Companies as per the requirements of the Act. The Act has specific purpose and object behind the said designation which is to ensure delivery of/service of documents of the company. A company being a juristic person and a corporate body and not a natural person, cannot be served personally. Section 434(1)(a) of the Act, therefore, has to be interpreted keeping in view section 51 of the Act as well as presumption raised under section 27 of the General Clauses Act and section 114 of the Evidence Act. It has to be given a pragmatic and practical interpretation. Otherwise, by keeping the registered office closed and locked, service of notice under section 434(1)(a) or documents under section 51....
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....ed by the tenant was that the word "served" postulates actual service and therefore eviction order was not sustainable. The Supreme Court felt that this interpretation should not be adopted, as too strict and literal interpretation would make the section impracticable and unworkable. All that the landlord is required, in compliance with the provisions of the Act, is to send a prepaid registered letter to the tenant's correct address. Once he has posted a letter, he has no control over it. Similarly, the postman is required to deliver the letter and in case he is unable to contact the addressee or the person authorized to receive is not available, he has to return the letter. The postman neither has power nor time to make enquiries regarding the whereabouts of the addressee nor is he expected to retain the letter until the addressee chooses to refuse or accept it. Postman is not authorized to affix the letter on the premises because addressee is absent. The addressee can easily avoid receiving the letter addressed to him without specifically stating that he had refused to receive the same. Accordingly, it was observed in Madan & Co.'s case (supra) as under :- "6. .... It is su....
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....livered and served on the respondent-company. 22. The second contention of the respondent-company and the respondent No. 2 relates to service of notices after filing of the petition. Affidavit of service filed on 3-5-2007 states that notices sent to the respondent-company by courier as well as by registered post at their registered office were received back with the report "left without address". It is after this service report that notices were directed to be published in the newspapers "Hindustan Times" (English) and "Veer Arjun" (Hindi). These were published and thereafter Order dated 5-12-2007 was passed. Interestingly, in the application filed by respondent No. 2, he has not denied/disputed that 12, Vaishali, Pitampura, Delhi-110088 and 9/83, Punjabi Bagh (West), New Delhi-110026, are his addresses. He has stated that he was not available at the said addresses and has given a third address : D-810, Thumps Up Apartments, Sector 4, Dwarka, Delhi. He has further stated that Commissioner of Customs and Central Excise, Chandigarh had raised an "illegal demand" for recovery and auctioned some of the plants, machineries and movables of the respondent-company on 15-10-2004. Thereaf....