Delhi High Court
India Foils Limited vs Sr Foils Limited And Ors. on 20 November, 2001
Equivalent citations: 96 (2002) DLT 824
Author: M B Lokur
Bench: M B Lokur
ORDER
Madan B. Lokur, J.
1. The petitioner has filed this petition under the provisions of Section 433(e) read with Section 434 and 439 of the Companies Act, 1956 (for short the Act).
2. According to the petitioner, the respondent owes a substantial amount to the petitioner. However, it is alleged that the respondent is unable to repay its debts. Consequently, the affairs of the respondent deserve to be wound up under the aforesaid provisions of the Act.
3. According to the petitioner, the respondent had issued certain cheques to the petitioner but the same had bounced. Consequently, the petitioner sent notices dated 30th May, 2000 under the provisions of Section 138 of the Negotiable Instruments Act demanding the amount from the respondent.
4. The subject of the notices clearly mentions that these are notices under Section 138 of the Negotiable Instruments Act.
5. The concluding paragraph of the notices are the same and they read as follows:
"My clients also reserve their rights to take such other remedies as are available to them in law, for recovery of the above amount including proceedings for winding up under Sections 433 and 434 of the Companies Act. A copy of this notice is being retained to initiate appropriate action in the event of your not complying fully with the requisitions herein. You are also required to pay a sum of Rs. 1,000/- (Rupees one thousand only) as costs of this notice."
6. A perusal of the notices clearly shows that they were issued under the provisions of the Negotiable Instruments Act and not under the provisions of the Act.
7. The provisions of the Act require certain formalities to be completed, one of which includes a period of three weeks to be given to he defaulting party. This period has obviously not been given to the respondent to make the payment.
8. Apart from this technicality which can, under normal circumstances be ignored, the concluding paragraph of the notices mentioned above clearly shows that the notices were intended to be issued under the provisions of the Negotiable Instruments Act. The petitioner had reserved its rights to take action against the respondent under the provisions of the Act also. However, this reservation was not taken advantage of by the petitioner by sending a legally valid notice under the provisions of the Act.
9. Under the circumstances, I am of the view that the respondent is right in its contention that no valid statutory notice has been issued to the respondent.
10. Learned Counsel for the petitioner contended that a composite notice can be sent to the respondent. Even if this proposition is accepted, the fact still remains that the notices dated 30th May, 2000 were not composite notices but were notices issued only under the provisions of the Negotiable Instruments Act. I do not think that this line of argument will, therefore, advance the case of the petitioner.
11. Under the circumstances, in the absence of a valid statutory notice having been issued to the respondent under the provisions of Section 434 of the Act, the present petition is not maintainable. The same is, accordingly, dismissed.
12. The petitioner is, of course, at liberty to take such other action at law as may be otherwise permissible.
