TaxTMI 
TaxTMI 
2013 (2) TMI 196
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed office of the company and, on the basis of the petition, it would be evident that the two other limbs of Section 434(1) of the Companies Act, 1956 are not attracted. Upon this creditor's petition for winding up the company being served on the company, affidavit directions were issued on November 29, 2011. The company indicated on such date that the petition was not maintainable in the absence of any statutory notice having been issued. However, on February 8, 2012, the parties agreed that the petition would remain adjourned sine die but the petitioner would be entitled to seek inclusion of the petition in the list upon a default being made by the company in CP No. 592 of 2011 in making payment to the petitioner in such proceedings in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lkata 700 007. The company says that paragraph 17 of the petition makes it clear that the creditor's action is founded on the notice of demand issued at the registered office of the company since it has been pleaded "that a period of more than three weeks has elapsed since the service of its notice of demand upon the respondent, for the amounts due and owing to it." It, however, does not appear from the body of the petition that the notice of May 28, 2010 is claimed to be the statuary notice as paragraph 13 of the petition speaks of several notices of demand being made on the company and copies of the several notices, including the notice of May 28, 2010, are appended collectively as annexure F to the petition. The petitioner says tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or to the registered office of the company would not disentitle the creditor from seeking winding up of the company by relying on the legal fiction in Section 434(1)(a) of the Act. According to the petitioner, as long as there is a valid claim and the company is notified in writing thereof and the company fails to discharge the debt without there being any reasonable cause for not so doing, the company court is empowered to infer the company's inability to pay its debts by virtue of clause (a) of Section 434(1) of the Act. In such context, the petitioner first refers to an unreported judgment of the company Judge in the Allahabad High Court rendered on February 5, 2003 in CMRA No. 155372 of 2002, CP No. 7 of 2002 (Om Prakash Jaiswal v. S....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jeswari Packaging Products v. Dev Fasteners Limited). The Allahabad case is distinguishable on the ground that the statutory notice in that case was served at the registered office of the company upon the creditor ascertaining the same from the office of the registrar of companies. The Madras judgment does not appear to be good law and, in any event, cannot be accepted in this court in the light of the view taken by a Division Bench of this court that still holds good. In the judgment of the Division Bench reported at AIR 1954 Cal 499 (Bukhtiarpur Bihar Light Railway Co. Ltd v. Union of India), it has been unequivocally recognised that it is imperative that all conditions of a deeming provision are complied with if the legal fiction t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etition for winding up was less than three weeks. I ought to state here that on behalf of the Union of India, Mr. Kar admitted that there was no statutory notice of demand in the case on which his client could rely and he also informed us that the court of appeal had already so held in connection with the application for a stay of the order which is under appeal before us now." The judgment in Bukhtiarpur Bihar Light Railway Co. Ltd instructs that the court must be strict in assessing whether all the conditions laid down in Section 163(1)(i) of the Indian Companies Act, 1913 (Section 434(1)(a) of the Companies Act, 1956 carries the same provision in the successor statute) have all been complied with before the inference of the inability ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orded to the company under which the company obtained material from a third party seller and the petitioner made immediate payment to the seller against the company's promise to repay the petitioner with interest at a future date. The company's case is that the money covered by the dishonoured cheques has been paid to the seller and the petitioner should look to the seller to realise the dues. Though there is substantial basis to the petitioner's assertion that the company's alleged payment to the seller may not discharge the company of its obligation to pay the petitioner, the facts are not such as would prompt the company court to admit the petition on the ground that it is just and equitable to wind up the company despite the presumpt....