TaxTMI 
TaxTMI 
2014 (1) TMI 1522
X X X X Extracts X X X X
X X X X Extracts X X X X
....plication filed by the Respondent, Prem Power Construction Private Limited ('PPCL'), under Rule 9 of the Companies (Court) Rules ('Company Rules'), read with Order XXXIX Rule 4 of the CPC and Section 151 of CPC for, inter alia, setting aside the ex parte interim order dated 15th February 2013 and the order dated 1st May 2013 passed by the Court. 2. The background to this application is that HDFC Bank Limited ('HDFC') filed the above petition seeking the winding up of PPCL under Section 433 (1) (e) of the Companies Act, 1956 ('CA'). When the petition was first listed on 5th February 2013, the Court enquired whether HDFC, which is admittedly a secured creditor of PPCL, was interested in pursuing the petition. Learned counsel for HDFC sough....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ber 2013, the said appeal was disposed of by the Division Bench ('DB') by the following order: "At the very outset it has been suggested by Mr. Saurav Kirpal, learned counsel for the Appellant that since the impugned order dated May 01, 2013 was passed ex parte, the matter be remanded back to the learned Company Judge for hearing the Appellant. The prayer is not opposed by learned counsel for the Respondent subject to the condition that status quo is maintained in respect of the assets of the company which are stated to have been taken over by the Official Liquidator. Learned counsel for the Official Liquidator confirms that the assets of the company have been taken over by the Official Liquidator and that status report in this regard....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing it under Section 434 (1) (c) of the CA. Therefore, it was not open now to HDFC to seek winding up in terms of Section 434 (1) (c) of the CA. 7. Mr. Kunal Tandon, learned counsel for HDFC, first submitted that notices were sent to the registered office of PPCL at Khasra No. 261/1, Village Ghitorni, New Delhi 110 030 by courier and speed post. While the notice sent by courier was returned unserved, the notice sent by speed post was not. According to him, under Section 434 (1) (a) read with Section 51 of the CA and Section 27 of the General Clauses Act, 1897 the notice sent by speed post should be deemed to have been served at the registered office of PPCL. Relying on the decisions of this Court in Kotak Mahindra Bank Limited v. Hermoni....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in paras 22 and 23 of the petition reads as under: "22. That claiming the aforementioned amount, the Petitioner sent a winding up notice dated 1st October 2012 to the Respondent at the registered office of the Respondent (as per Petitioner's records) at Khasra No. 261/1, Village Ghitorni, New Delhi - 110 030. Copy of the said winding up notice dated 1st October 2012 is annexed herewith and marked an Annexure P-21. It is stated that no reply to the said winding up notice has been served on the Petitioner by the Respondent. 23. That the Petitioner also sent a winding up notice dated 11th December 2012 at the registered office of the Respondent (as mentioned on the website www.mca.gov.in) and again no reply was received by the Petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rk 'Addressee left without address." The returned envelopes are annexed herewith and marked as ANNEXURE A (Colly). It is pertinent to mention that the notices were also sent at the address 90-B, Phase IV, Udyog Vihar, Gurgaon - 122015 which have been delivered. The proof of service is annexed herewith and marked as ANNEXURE B. The said address is the same at which the Appellant has been served in the OA filed before the DRT Chandigarh as well as admittedly in use as office as per the appeal." 11. Mr. Tandon produced the original of the envelope sent to PPCL by courier at its registered office. It was obviously unserved since it has been produced in Court. It contains the address of the registered office of PPCL as indicated in several do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ould be a presumption of service since the statutory requirement was that service had to be effected at the registered office. It was concluded that "if the registered office is closed/locked and no one is there to receive letters/notices, fault is that of the company. They cannot take advantage of their fault." However, in the present case the returned envelope that has been produced in Court is without the remarks 'insufficient address' as has been pleaded by HDFC in its reply to the appeal filed by PPCL before the DB. In Global Infosystem Limited v. Lunar Finance Limited the notice was returned 'unclaimed'. That decision too, therefore, is distinguishable on facts. 14. In the instant case there is no pleading that the notice was sent ....