Grant Thornton India Llp vs Resolution Capital Global Pvt. ...
2014 Latest Caselaw 1394 Del

$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision :14th March , 2014

+      CO. APPL. No.852/2013 in CO.PET. No.594/2012

       GRANT THORNTON INDIA LLP                ..... Petitioner
                   Through: Mr. Ambar Qamaruddin with Mr.
                             Ajay Talesara, Advocates.
           versus

    RESOLUTION CAPITAL GLOBAL PVT. LTD. ..... Respondent

Through: Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Rajendra Sahu and Mr. Rishabh Sahu, Advocates.

CORAM:

HON'BLE MR. JUSTICE R.V.EASWAR

R. V. EASWAR, J.: (ORAL)

1. By order dated 22.3.2013 this Court admitted the winding up

petition filed by the petitioner and also appointed a provisional liquidator

and ordered publication of citation in the newspapers.

2. The company application No.852/2013 was filed by the

respondent-company seeking recall of the appointment of the provisional

liquidator. On 21.5.2013 this Court issued notice and in the interim kept

the order appointing provisional liquidator in abeyance.

3. I shall now proceed to dispose of the company application

852/2013. I notice that the learned counsel for the petitioner stated before

this Court on 31.1.2014 that he does not wish to file any reply to the

application. The application seeking recall of the order passed by this

Court has been filed on the ground that no statutory notice contemplated

by section 434(1)(a) of the Companies Act was served on the respondent

as claimed in the affidavit of service dated 20.2.2013 filed by the

petitioner. It is submitted that the order dated 22.3.2013 was ex-parte qua

the respondent and this Court accepted the averments in the company

petition. It is further pointed out that the statutory notice bears the postal

remark "refused", the reason being that the corporate office of the

company was moved to Mumbai as shown in form No.23AA filed with

the ROC. It is further stated that the petitioner was aware of the change

of the corporate office but still sent the statutory notice to the registered

office merely to obtain ex-parte orders. It is further stated in the

application that it is only when the officials of the OL's office visited the

premises of the respondent at A-49 Mohan Cooperative Industrial Estate,

Mathura Road, New Delhi-110044 on 7th May, 2013 that the respondent

came to know of the proceedings in this Court and immediately hastened

to file the application.

4. In support of the application it is pointed out on behalf of the

company that there are several persons/entities operating from the

premises in which the registered office of the respondent is situated and

therefore it is difficult to ascertain as to who refused to accept the

statutory notice. It is not disputed that the notice is to be served on the

company at its registered office and not at its corporate office, but at the

same time it is argued that the petitioner ought to have been aware that

there was no activity carried on in the registered office of the company

and therefore it would be appropriate to serve the statutory notice at the

corporate office. It is also contended that the non-appearance of the

respondent before this Court on 22.3.2013 when ex-parte orders were

passed was not deliberate or wilful.

5. I am afraid I am unable to accept the application. Under section

434(1)(a) of the Companies Act the statutory demand notice has to be

served on the company by delivering it at the registered office by

registered post or otherwise. There is no dispute that the registered office

of the company is at A-49 Mohan Cooperative Industrial Estate, Mathura

Road, New Delhi. It is also not disputed that the registered office

continues to be at the same place despite the corporate office being

shifted to Mumbai. The record reveals that the statutory demand notice

dated 5.9.2012 was addressed to the registered office of the respondent-

company. The acknowledgment card issued by the Department of Posts

shows that the notice was "refused" and an endorsement to that effect is

found made therein. It is settled law that a notice which is refused is

deemed to have been duly served. The claim made on behalf of the

applicant that since the premises were being used by several persons it

cannot be ascertained as to who refused to accept the notice and whether

such a person was duly authorised to accept or refuse notices, is not

acceptable. The fact that the corporate office was shifted to Mumbai and

that was within the knowledge of the petitioner is no excuse since the

statute requires that the statutory demand notice ought to be served at the

registered office of the company.

6. In the above circumstances I do not see any merit in the application

for recall of the ex-parte order passed by this Court appointing a

provisional liquidator. The same is dismissed with no order as to costs.

(R.V. EASWAR) JUDGE MARCH 14, 2014 vld