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2014 DIGILAW 915 (DEL)

GRANT THORNTON INDIA v. RESOLUTION CAPITAL GLOBAL

2014-03-14

R.V.EASWAR

body2014
Judgment R.V. EASWAR, J. 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. 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. 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.