Tata Iron and Steel Co. Ltd. vs Omega Cables Ltd.

S. Rajeswaran, J.—This company petition is filed to wind up the respondent-company and to appoint the Official Liquidator, High Court,

Madras, as the liquidator of the respondent-company.

The petition averments are as under:

The petitioner''s original name was M/s. Tata SSL Ltd., and in that name they effected some supplies to the respondent from the year 2001

onwards. In respect of such supplies, the petitioner raised various invoices on the respondent amounting to a sum of Rs. 33,50,386. The petitioner

also raised interest debit note No. 9037 dated July 18, 2001, for Rs. 4,99,014. Against the said amount, the respondent effected only part

payment of Rs. 4,54,542.81 and still a sum of Rs. 31,51,399 remain due and payable by the respondent. By a scheme of amalgamation Tata SSL

Ltd., merged with Tata Iron and Steel Co. Ltd., which was sanctioned by the Bombay High Court on April 3, 2003, in C. P. No. 100 of 2003.

As per the scheme, all the assets and the liabilities of Tata SSL Ltd., vested with Tata Iron and Steel Co. Ltd., the petitioner herein.

The respondent failed to make any payment towards the balance amount and therefore the petitioner sent a statutory notice of demand on

August 23, 2004, calling upon the respondent to pay a sum of Rs. 31,51,599. The notice was received by the respondent on August 27, 2004,

but no amount was paid by the respondent. The petitioner issued another notice in its present name dated May 6, 2005, and the same was

returned with the postal endorsement ""Co. closed"". At the time of filing company petition, as per the petitioner, the respondent is due to pay a sum

of Rs. 66,17,937.90 and hence they prayed for winding up of the respondent-company and appointing the official liquidator as the liquidator of the

respondent-company.

The respondent entered appearance through their counsel and filed counter affidavit.

The respondent stated that the first notice issued in the name of Tata SSI Ltd., was not a valid notice as there was no such company on April

23, 2004. They also questioned the genuineness of the acknowledgment card on the ground that it does not disclose the current date and the year.

The second notice sent by the petitioner in the present name was returned. Therefore, there was no acknowledgment of the statutory notice nor

acknowledgment of alleged debts. The respondent disputes the alleged debt as according to them the materials supplied by the petitioner were

rejected and therefore the company petition is not maintainable. The respondent also states that the claim itself is barred by limitation. Hence, they

prayed for the dismissal of the company petition.

A reply affidavit has been filed by the petitioner reiterating their earlier stand and praying for winding up of the company.

Heard learned Counsel for the petitioner and learned Counsel for the respondent. I have also gone through the documents and judgments

referred to by them in support of their submissions.

Learned Counsel for the petitioner has submitted that by letter dated March 21, 2002, the respondent admitted their liability and therefore they

cannot deny their liability before the company court. Learned Counsel further submitted that the second notice was sent to the current address of

the company by registered post, therefore it is a valid service, even though the same was returned. For this submission, learned Counsel relied on a

decision of the hon''ble Supreme Court reported in M/s. Madan and Co. Vs. Wazir Jaivir Chand, . Learned Counsel further added that the

balance confirmation report submitted by the respondent on July 19, 2002, will also prove the categorical admission of the liability by the

respondent.

Per contra, learned Counsel for the respondent submitted that a letter dated March 21, 2002, did not admit any specified amount and as the

respondent-company was maintaining a running account, they only received the balance confirmation report and the signature affixed in the report

is only for the purpose of acknowledging the receipt of the report and not for admitting the liability.

I have considered the rival submissions carefully with regard to facts and citation.

In a company petition filed for winding up of a company, the petitioner has to first prove that the amount due is undisputed and admitted by the

respondent- company.

In this case, the petitioner relies on the letter dated March 21, 2002, to prove that the due is admitted and undisputed by the respondent.

A perusal of the letter would only show that the deputy manager of the respondent-company informed the petitioner-company that they shall

resume the normal production and shall start releasing the payments against the petitioner''s outstanding bills as per the understanding with the

petitioner.

Therefore, this letter dated March 21, 2002, is not an unambiguous and categorical admission of a specified amount due and payable by the

respondent to the petitioner.

Similarly, the balance confirmation report dated July 19, 2002, cannot also be said to be an unconditional admission of the debts by the

respondent.

According to the respondent, they have rejected some materials supplied by the petitioner for which proper credit was not given by the

petitioner. They have also filed certain letters in the additional typed set of papers to show that some materials were rejected and they asked for

credit notes towards the value of the same.

In such circumstances, the above company petition filed by the petitioner is misconceived and if at all the petitioner is aggrieved, they have to

approach the proper forum.

Coming to the question of proper service of statutory notice, I am of the considered view that once a notice is sent to the correct address by

registered post with a/d the notice is deemed to have been sent to the correct address as per statute. Hence, I am rejecting the arguments of

learned Counsel for the respondent that there is statutory compliance of sending the notice before filing the petition. However, it is open to the

respondent to prove that they have received the notice and also to prove that the registered post with a/d was not sent as claimed by the petitioner

before the appropriate forum if the petitioner files any litigation against the respondent in this regard. In the result, the C.P. No. 54 of 2006, is

dismissed. No costs.