1 APPL 134-17.doc-23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.134 OF 2017
IN
COMPANY APPLICATION NO.448 OF 2016
IN
COMPANY PETITION NO.276 OF 2011
State Trading Corporation of India Ltd. ]
a company incorporated under the ]
provisions of the Companies Act, 1956, ]
with its office at Jawahar Vyapar Bhavan, ]
Tolstoy Marg, New Delhi - 110 001. ] ... Appellants /
(Orig. Petitioner)
Versus
1. Indo Bonito Multinational Ltd. & Anr. ]
a Company incorporated under the ]
provisions of the Companies Act, 1956, ]
having its office at A-729, TTC Industrial ]
Area, Koparkhairane, Navi Mumbai-400705.] ...Orig. Respondent
2. Shubhra Sudhanshu Datta. ]
(Ex-Director, Indo Bonito Multinational Ltd.)] ... Respondents /
(Orig. Applicant)
Mrs. S. I. Shah i/b S. I. Shah & Co. for Appellant.
Mr. Mayur Khandeparkar a/w Mr. Jamshed Ansari & Mr. Mayur Kadu
for Respondents.
CORAM :- R. M. SAVANT &
SARANG V. KOTWAL, JJ.
DATE :- 13 NOVEMBER, 2017
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JUDGMENT (PER : R. M. SAVANT, J.) :-
1. Admit. Heard forthwith.
2. The above Appeal takes exception to the order dated 22/02/2017 passed by a learned Single Judge of this Court (Coram R. D. Dhanuka, J.). By the said order, the Company Application No.448 of 2016 filed by the Respondent no.2 herein who is the Ex-Director of the Respondent no.1, came to be allowed and resultantly, the order dated 14/11/2014 passed in Company Petition No.276 of 2011 came to be recalled.
3. It is not necessary to burden this order with unnecessary details. Suffice it would be to state that an amount of Rs.112,99,23,300/- was due and payable by the Respondent Company i.e. the Respondent herein to the Petitioner i.e. the Appellant herein towards the payment of the outstanding dues of foreign buyers as stated in the Agreement dated 22/06/2006 and Addendum MOU dated 07/07/2009 executed by and between the Petitioner and the and the Respondent Company under the Post Shipment facility availed of by the Respondent Company through the Petitioner's bankers EXIM URS 2 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 3 APPL 134-17.doc-23 Bank in the years 2006-07-08-09 for USD 41094627.87 which is equivalent to Indian Rs.184,92,58,254/-, totally aggregating to Rs.215,11,40,300/-. The Petitioner accordingly issued a statutory notice dated 24/12/2010 on the Respondent Company calling upon the Respondent Company to pay the said amount of Rs.215,11,40,300/- to the Petitioner within 21 days from the receipt of the said statutory notice. In view of the fact that the said statutory notice did not evince any response from the Respondent Company that the Petitioner filed the instant Company Petition being Company Petition No.276 of 2011 seeking winding-up of the Respondent Company. Copy of the said Company Petition was sought to be served at the address of the Respondent Company appearing in the record of the Registrar of Companies. However, the packet containing the copy of the petition was returned with the remark 'shifted'. It seems that thereafter inquiries were made by the Petitioner with the Registrar of Companies in August 2011 upon which the Petitioner was furnished with the registered address of the Respondent Company at Goregaon, Mumbai. The packet addressed at the said address also returned with the postal remark as 'unclaimed'. On further inquiries being made in July 2012, the Registrar of Companies furnished to the Petitioner URS 3 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 4 APPL 134-17.doc-23 'Company Master Details' of the Respondent Company and in the said details, the address mentioned of the Respondent Company was an address in Koparkhairane, Navi Mumbai. The said address would be referred to in detail in the subsequent part of this order. However, the packet which was sent at the said address of Koparkhairane, Navi Mumbai also came back with the remark that the company is 'not available'
4. The Company Court i.e. the learned Single Judge, by order dated 30/07/2012, admitted the above Company Petition. The learned Single Judge has recorded in the said order that the copy of the petition has been served at the registered office shown in the records of the Registrar of Companies. The learned Single Judge has also adverted to the fact that the packet containing copy of the petition has been returned with the remark 'shifted'. The learned Single Judge, therefore, observed that the Company is unable to pay its debts and therefore deserves to be wound-up. The learned Single Judge accordingly issued the directions as regards the advertisement, depositing the cost of advertisement etc. in the said order dated 30/07/2012.
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5. The Company Petition thereafter came up for final hearing before the learned Single Judge on 14/11/2014. The learned Single Judge adverted to the order of admission dated 30/07/2012 and the observations made therein in respect of service effected on the Respondent Company. The learned Single Judge has also adverted to the fact that the notice under Rule 28 of the Companies (Court) Rules, 1959 which was sought to be served on the Company, returned with the remark 'left'. The learned Single Judge has also adverted to the fact that since the notice was sought to be served on the registered address which on the day was shown in the record of the Registrar of Companies, the notice is deemed to have been served on the Company though the packet has come back with the remark 'left'. The learned Single Judge accordingly made the Company Petition absolute in terms of prayer clauses (a) and (b) and resultantly directed winding- up of the Respondent Company under the orders of this Court.
6. The Respondent No.2 herein who is the Ex-Director of the Respondent No.1 Company thereafter filed the instant Company Application No.448 of 2016 for condonation of delay of 530 days in filing the application and for recall of the said order dated URS 5 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 6 APPL 134-17.doc-23 14/11/2014 passed by the learned Single Judge directing winding-up of the Respondent Company. In justification of the delay, it was stated that the Applicant became aware of the order passed on 14/11/2014 on 27/04/2016 and that the instant Company Application was filed on 06/05/2016. The foundation for the said Application can be said to be the fact that the Applicant had not received the notice of the above Company Petition as the same was not served on its registered address at Koparkhairane, Navi Mumbai. It seems that no reply was filed to the said Company Application. A learned Single Judge of this Court (R. D. Dhanuka, J.) considered the said Application and by the impugned order dated 22/02/2017, allowed the said Application and whilst allowing the said Application, condoned the delay of about 530 days in filing the Application. The learned Single Judge has adverted to the mandate of Rule 28 of the Companies (Court) Rules, 1959 which requires that the Company Petition was required to be served on the registered address of the Respondent. The learned Single Judge has adverted to the Division Bench Judgment of this Court in the case of MODERN DEKOR PAINTING CONTRACTS PVT. LTD. VS. JENSON & NICHOLSON URS 6 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 7 APPL 134-17.doc-23 (India) LTD. and another1 which Judgment is an exposition of the Division Bench as regards the said Rule 28 and the Judgment of the learned Single Judge of this Court in SKOL BREWERIES LTD. VS. SANMAN DISTRIBUTORS PVT. LTD.2 in which Judgment, the Judgment of the Division Bench has been referred to and relied upon. The learned Single Judge, therefore, deemed it appropriate to allow the Application thereby setting aside the order dated 14/11/2014 passed in the above Company Petition and issued the directions which are contained in the operative part which would facilitate the de novo hearing of the Company Petition by recording the statement made by the learned Counsel for the Respondent that he waives notice under Rule 28 of the Companies (Court) Rules, 1959. As indicated above, it is the said order dated 22/02/2017 which is taken exception to by way of the above Appeal.
7. Heard the learned Counsel for the parties.
8. The learned Counsel for the Appellant i.e. the Petitioner Mrs. S. I. Shah would contend that the Petitioner had sought to serve the Company Petition at all the three addresses i.e. the Santacruz 1 1983 Mh.L.J. 485 2 AIR 1999 Bombay 249 URS 7 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 8 APPL 134-17.doc-23 address, Goregaon address and the Koparkhairane, Navi Mumbai address. However at all the three address, the packets came back with remarks as 'shifted', 'unclaimed' and 'not available'. It was the submission of the learned Counsel that having regard to the said fact of the packets not being claimed on behalf of the Respondent Company, there was no necessity for the Petitioner to amend the cause-title so as to correct the address mentioned of the Respondent Company in the cause-title so as to incorporate the Koparkhairane, Navi Mumbai address. It was also the submission of the learned Counsel that Rule 28 (2) also provides that the Company Petition can be served as the last known address of the Company in question of whose winding-up is sought. The learned Counsel would seek to place reliance on the order directing the winding-up as according to her, in the said order, the learned Single Judge who passed the final order of winding-up in the Company Petition, has taken cognizance of the fact that the notice was sought to be served at the registered address which was in the record of the Registrar of Companies. It was, therefore, the submission of the learned Counsel that the learned Single Judge has erred in recalling the order passed in the Company Petition.
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9. Per Contra, the learned Counsel for the Respondents Mr. Mayur Khandeparkar supported the impugned order. The learned Counsel would contend that the attempt of the Petitioner to serve the Respondent Company at the pre-admission stage at Koparkhairane, Navi Mumbai address is of no avail in view of the fact that service of the Company Petition after its admission is also required to be effected at the registered address of the Company which, in the instant case, is Koparkhairane, Navi Mumbai. In support of the said contention, the learned Counsel would seek to rely on the Judgment of the Division Bench in the case of MODERN DEKOR (supra) and the learned Single Judge in SKOL BREWERIES LTD (supra). It was the submission of the learned Counsel that a clear distinction has been made between the service effected prior to the admission of the petition and post the admission of the petition insofar as compliance of Rule 28 of the Companies (Court) Rules, 1959 is concerned. It was, therefore, the submission of the learned Counsel that no interference is called for with the impugned order passed by the learned Single Judge.
10. Having heard the learned Counsel for parties, we have given our anxious consideration to the rival contentions. The issue URS 9 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 10 APPL 134-17.doc-23 that arises is whether the order dated 14/11/2014 directing the winding-up of the Respondent Company was required to be recalled as has been done by the learned Single Judge by the impugned order. In the said context, it would be apposite to refer to Rule 28 of the Company (Court) Rules, 1959 which, for the sake of ready reference, is reproduced hereunder :
"R.28. Service on company - (1) Where a petition is presented against a company, it shall be accompanied by a notice of the petition in the prescribed form together with a copy of the petition for service on the company and an envelope addressed to the company at its registered office or its principal place of business and sufficiently stamped for being sent by registered post for acknowledgment. The Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post.
(2) Every petition and, save as otherwise provided by these rules or by an order of Court, every application, shall unless presented by the company, be served on the company at its registered office, or if there is no registered office, at its principal or last known principal place of business, by leaving a copy thereof with an officer or employee of the company, and in case no such person is available, in such manner, as the Judge or Registrar may direct, or, by sending a copy thereof by prepaid registered post addressed to the company at its registered office, or, if there is no registered office, at its principal or last known principal place of business, or to such person and at such address as the Judge or Registrar may direct.
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Where the company is being wound-up the
petition or application shall also be served on the liquidator, if any, appointed for the purpose of winding-up the affairs of the company."
A reading of the said rule, therefore, makes it clear that the requirement is that a copy of the Company Petition along with notice in the prescribed form is to be lodged with the Company Department of this Court for facilitating the service to be effected on the Company of which winding-up is sought. At this stage, it is required to be noted that on behalf of the Petitioner as many as three affidavits of service have been filed. However, the said affidavits of service are pre-dating the admission of the Company Petition. The said affidavits disclose the three addresses at which the notice prior to the admission of the Company Petition was sought to be served on the Respondent Company. The said three addresses are as follows :
(1) Office No.10, 2nd Floor, Dheeraj Heritage, S. V.
Road, Milan Subway (Junction), Santacruz (W), Mumbai - 400 054.
(2) 1011, B-Wing, 11th Floor, I. J. Mima Complex, Link Road, Behind Goregaon Sports Club, Malad (W), Mumbai, Maharashtra.
(3) A-729, TTC Industrial Area, Koparkhairane, Navi Mumbai.
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Insofar as the third address is concerned, the said address has been furnished to the Petitioner after a search was taken by the Petitioner in the office of the Registrar of Companies. The said address forms part of the 'Company Master Details' of the Respondent Company. In the extract furnished by the office of the Registrar of Companies, the address mentioned is the aforesaid third address namely Koparkhairane, Navi Mumbai. It is required to be noted that the pre-
admission notice was sought to be served at the said address. However, the packet came with remark as 'not available at the said address'. As indicated above, the Company Petition came to be admitted on 30/07/2012 and in terms of Rule 28, it was required on the part of the Petitioner that the notice be once again served on the Respondent at the said address i.e. Koparkhairane, Navi Mumbai. Admittedly, this has not been done.
11. Now coming to the Judgment of the Division Bench, the Division Bench in the case of MODERN DEKOR (supra), has held that the service of the notice under Rule 28 is mandatory. The Division Bench has further held that after the admission of the petition, a notice has to be served upon the Company and this is made amply URS 12 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 13 APPL 134-17.doc-23 clear by Sub-Rule (1) of Rule 28 which states that the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the Company by registered post. The Division Bench has in terms held that a letter intimating the date fixed for the admission of the petition given to the Company is an altogether different aspect of the matter. The Division Bench also did not countenance the submission urged in the said case that the advertisement published in the newspapers should be taken as service upon the Company.
12. As indicated above, the said Judgment of the Division Bench has been followed by the learned Single Judge in SKOL BREWERIES LTD (supra) wherein the learned Single Judge has held that Rule 28 is mandatorily required to be followed and complied with after the admission of the Company Petition by issuance of notice to be sent along with the Company Petition to the Company by registered post.
13. In the light of the exposition of the Division Bench followed by the learned Single Judge, it is not possible to accept the URS 13 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 14 APPL 134-17.doc-23 contention urged on behalf of the Petitioner that since the packet which was sought to be served on the Respondent Company at the Koparkhairane, Navi Mumbai address had returned with the remark that the Company was not available at the said address, the Petitioner was not required to amend the cause-title so as to incorporate the said Koparkhairane, Navi Mumbai address in the cause-title. In our view, in a matter as serious as a Company Petition which seeks direction for winding-up of a Company which obviously has a serious consequence for the Company, the procedure cannot be short-circuited as in the matter sought to be contended by the learned Counsel for the Petitioner i.e. the Appellant herein. Since the Koparkhairane, Navi Mumbai address was the address appearing in the 'Company Master Details' of the Registrar of Companies, the Appellant was required to take steps to serve the notice post the admission of the petition at the said address. It is also not possible to accept the contention of the learned Counsel for the Petitioner that Rule 28 (2) provides for service to be effected at the last known address. The said provision would apply only if there is no registered address of the company. In our view, therefore, there is no merit in the above Appeal. The order passed by the learned Single Judge, in the facts and circumstances of URS 14 of 15 ::: Uploaded on - 22/11/2017 ::: Downloaded on - 24/11/2017 12:32:07 ::: 15 APPL 134-17.doc-23 the case, condoning the delay whilst setting aside / recalling the order dated 14/11/2014, cannot be found fault with. The Appeal is accordingly dismissed.
(SARANG V. KOTWAL, J.) (R. M. SAVANT, J.)
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