Calcutta High Court
Corporate Ispat Alloys Limited vs G.B. Transport (India) Pvt. Ltd on 13 July, 2015
Author: Indira Banerjee
Bench: Indira Banerjee
ACO No. 99 of 2015
ACO No.100 of 2015
APOT No. 259 of 2015
With
CP No.40 of 2015
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
CORPORATE ISPAT ALLOYS LIMITED
VERSUS
G.B. TRANSPORT (INDIA) PVT. LTD.
BEFORE:
The Hon'ble JUSTICE INDIRA BANERJEE
And The Hon'ble JUSTICE MIR DARA SHEKO Date : 13 th July, 2015 Appearance:
Mr. M.S. Tiwari, Adv.
Mr. Nirmalya Dasgupta, Adv.
Mr. Dibanath De, Adv.
The Court :- On going through the application being ACO No. 99 of 2015 and after hearing Mr. Tiwari, we are satisfied that there was sufficient cause for the delay of about 84 days in filing the appeal. The delay is condoned.
The application being ACO No. 99 of 2015 is disposed of.2
This appeal is against an Order dated 3rd March, 2015 passed by the Single Bench admitting the winding up petition being CP No. 40 of 2015 filed by the petitioning Creditor for winding up the appellant company. It is submitted that the prayer made by the appellant company for directions to file affidavits was refused.
From the order under appeal, it is not clear whether any prayer for affidavits was at all made. If the Court has omitted to record a submission, a prayer for correction of the order by incorporation of the submission would have to be made before the Court which passed the order. The appeal Court would only proceed on the basis of records.
It, however, appears from the order under appeal, that the winding up petition was admitted, as statutory notice under Section 434 of the Companies Act had not been replied to. The learned Judge observed that when statutory notice was not replied to, there was a presumption of acknowledgment of liability.
It is however well settled that statutory notice under Section 434(1)(a)of the Companies Act is to be served at the registered Office of the company. The attention of the learned Single Bench was not drawn to 3 the fact that statutory notice under Section 434 of the Companies Act, 1956 had not been served on the registered office of the appellant company.
It appears that in this case, statutory notice under Section 434 of the Companies Act, 1956 was served on the appellant company at Plot No.6, Small Industrial Area, Degaul Avenue, Asansol-713212 which is not the registered office of the company.
As per the Memorandum of Association of the company annexed to the winding up petition, the registered office of the company was to be situated in the State of Maharashtra. From the cause title of this application for stay of operation of the order under appeal, it appears that the registered office of the company is situated at Knowledge Hub, 5 th Floor, DN-23, Sector-V, Salt Lake City, Calcutta 700 091. The notice not having been served on the company at its registered office presumption of indebtedness could not have been drawn. The winding up petition could not, therefore, have been admitted on presumption. The petitioning creditor would have to prove, to the satisfaction of the Court, upon exchange of affidavits, that the Company is unable to pay its debts. The question of admission of the winding 4 up petition should, in our view, be decided on affidavits.
Our attention has been drawn by one of the supporting creditors to an order passed by an earlier Division Bench, in an appeal by the company, from an order of the Single Bench admitting the winding up petition of that supporting creditor, whereby the appeal had been dismissed with costs as advertisements had been issued. The order was passed in the facts of that case. This case is distinguishable since notice has not been served at the registered office of the company.
The order under appeal is set aside. Any observations in this order will not affect the result of the proceedings before the learned Single Bench.
The appeal APOT No.259 of 2015 and the stay application being ACO No.100 of 2015 are disposed of.
(INDIRA BANERJEE, J.) (MIR DARA SHEKO, J.) CS.