Rajasthan High Court - Jaipur
Winter Misra Diamond Tools Ltd. vs Payal Granites (P.) Ltd. on 8 October, 2004
Author: S.K. Keshote
Bench: S.K. Keshote
ORDER S.K. Keshote, J.
1. Heard learned counsel for the petitioner and perused the entire record of the petition.
2. The petitioner in this petition under Section 439 read with Sections 433 and 434 of the Companies Act, 1956 (for short 'the Act, 1956') prayed that Payal Granites Private Limited be wound up under the provisions of the Act, 1956. Prayer has also been made for award of costs of the proceedings in favour of the petitioner.
3. The facts, as emerge from the petition, are that pursuant to the order placed by the respondent-company the petitioner supplied diamond impregnated segments of size 3850 X 180 X 3.5 mm. of type MHF-15 on each blade (30 Numbers) to the company and raised its invoice No. BWD/ 121 dated 22-6-1996 for Rs. 8,11,655 (Rupees eight lakhs eleven thousand six hundred fifty five only). From time to time the respondent Company paid various amounts to the petitioner in part payments of its liability. The petitioner in its normal and ordinary course of a business has been maintaining an account of the company wherein various payments being made by the company have been duly credited and the amount of the invoices raised from time to time have been duly debited. Upon taking accounts a sum of Rs. 1,50,000 (Rupees one lakh fifty thousand only) principal sum is found outstanding, owing and due from the company to the petitioner.
4. It is stated that the respondent-company admitted and acknowledged its liability to pay the aforesaid outstanding amount to the petitioner. It issued the cheques in order to discharge its liability, the details of which have been given in para No. 8 of the petition. On presentation of those cheques, it is urged that the same were dishonoured. The petitioner deputed its representative to the respondent-company and called upon it to liquidate and pay the said entire outstanding amount but it is failed and neglected to liquidate and pay the outstanding amount or any part thereof in spite of repeated requests, visits and reminders.
5. The petitioner through its Advocate caused to be served upon the respondent-company a notice dated 26-3-1997 by registered post AD and UPC calling upon the respondent-company to pay the entire principal outstanding amount of Rs. 1,50,000 together with the interest thereon at the rate of 24 per cent per annum within three weeks of the receipt of the said notice.
6. It is stated that the respondent-company duly received the said notice but failed and neglected to pay the amount claimed therein and even failed to reply the said notice.
7. The petitioner has not produced on the record any document from the Office of the Registrar of Companies, Rajasthan, Jaipur to satisfy that the registered office of the respondent Company is at D-20, N.B.C. Staff Colony, Near Ground, Khatipura Road, Jaipur. In the affidavit filed in support of the petition and more particularly in para No. 2 thereof it is not stated that the contents of para Nos. 2 to 4 are based on the record of the respondent Company. Para No. 3 of the petition reads as under:
"3. that the Registered office of the company is situated at D-20, N.B.C. Staff Colony, Near Ground, Khatipura Road, Jaipur and Works at G-76-77, RIICO Ind. Area, Dadu, Jaipur (Rajasthan). That the authorised capital of the Company is Rs. 5,00,000."
8.The petitioner has not produced any document of the respondent Company to show, establish and satisfy that its registered office is at D-20, N.B.C. Staff Colony, Near Ground, Khatipura Road, Jaipur. The document Annexure-A is of little help to the petitioner. Therein the address of the registered office of the respondent-company is not given. The address given is of the office and factory. The office does not mean the registered office. In para No. 12 of the petition the petitioner averred.
"12. That the petitioner through its Advocate caused to be served upon the company a notice dated 26-3-1997 by Regd. A.D. and UPC calling upon the Company to pay the entire principal outstanding amount of Rs. 1,50,000 together with the interest thereon @ 24% p.a. within three weeks of the receipt of the said notice. The true copy of the aforesaid notice and postal receipt and acknowledgement card are annexed hereto and marked Annexure "I, J, K & L" respectively.
9. Annexure-I is the copy of the notice. It is addressed to the following persons :
"Payal Granites (P.) Ltd., (through its Director) G-76-77, RIICO Industrial Area, Dadu, Jaipur, Rajasthan.
Mr. Veer Singh Chauhan, D-20, N.B.C. Staff Colony, Near Ground, Jaipur (Rajasthan)."
10. The notice has been sent to the respondent-company at its factory address. One copy thereof has been sent to one Mr. Veer Singh Chauhan at its office address and he is not the company.
11. Section 434 of the Act, 1956 reads as under :
"434(1) A company shall be deemed to be unable to pay its
(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;
(b) if execution or other process issued on a decree or order of any Court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(c) if it is proved to the satisfaction of the Court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company.
(2) The demand referred to in Clause (a) of Sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm."
As per Clause (a) of Sub-section (1) of Section 434 of the Act, 1956 it is the legal duty of the petitioner to call upon the creditor by assignment or otherwise, to serve on the company by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand.
12. From the document Annexures I, J & L it cannot be taken a case of causing a notice upon the respondent-company at its registered address. First notice was sent to the respondent-company at its factory address and second was sent to its Director. It is true that on the acknowledgement the address of the Company is mentioned but there is nothing on the record showing that the same has been delivered.
13. The petitioner has not served a notice on the respondent-company and thus the relief prayed for in the petition cannot be granted. The case does not fall under Clause (c) of Sub-section (1) of Section 434 of the, 1956 nor it is pleaded by the petitioner.
14. In the result the petition fails and the same is dismissed. Consequent upon the dismissal of the petition, the application, filed therewith, does not survive and the same is also dismissed.