Case: Skol Breweries Limited Vs. Sanman Distributors Private Limited

P.C.This Appeal is directed against the order of the learned Single Judge whereby Company Application filed by the Respondent-company has been allowed and an ex-parte order of winding up dated 25th April 1997 has been set aside.2.The Company Petition was admitted on 2nd March 1995. The advertisements took place on 14th April, 1995. It is not in dispute that after admission of the Company Petition, notice in terms of Rule 28 of the Company Court Rules was not served on the Respondent-Company. Rule 28 postulates that a notice in the prescribed form together with a copy of the Petition shall be served on the company on its registered office or principal place of business. Rules also postulate filing of affidavit of service placing on record the fact of service on the Company. It is also postulated that in default of compliance with the requirements of the Rules as regards the advertisement and service of the Petition, the Petition is required to be posted for orders of the Company Judge whereupon either the Petition may be dismissed or such further directions as the Judge may think fit be issued.3.Since, admittedly, no notice was served on the Company, the learned Single Judge, relying upon a Division Bench decision of this Court in Modern Dekor Painting Contracts Pvt. Ltd. v. Jenson and Nicholson (India) Ltd. & Anr. 1985 Company Cases 675, has, by the impugned order, allowed the Application and set aside the winding up order, and has further directed the Company to file reply affidavit within six weeks so that Petition may be tried on merits.4.The learned Counsel for the Appellants contends that the Advocates of the Respondent-company were supplied, on 31st August 1995, copy of the Company Petition; the order dated 2nd March 1995 admitting the Petition and copies of the public advertisements dated 14th April 1995 when the said Advocates had asked for these documents in terms of their letter dated 22nd August 1995 in relation to Summary Suit No.3498 of 1992 between the parties. It has been contended that in the Application seeking setting aside of the ex-parte order of winding up, no explanation whatsoever has been offered as to why steps were not taken from August 1995 till filing of the Company Application in August 1997.5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of the Respondent-Company may be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of the Respondent-Company, is similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for the Respondent-company in the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the Respondent-company.

Decision:
0[ds]5.It is true that there is no explanation on the part of the Company as to why the Company waited for nearly two years in filing the Application and why it did not appear in the Company Petition despite the supply of the documents on 31st August 1995 to their Advocates. The conduct of themay be reprehensible but considering the mandatory nature of the Rules, we are of the opinion that the view taken by the learned Single Judge is a possible view and thus it does not call for any interference in the exercise of our appellate jurisdiction.6.In view of the above, the contention that the form of public advertisement, copies whereof were sent to the Advocates of theis similar to the form in which notice is required to be sent to the company, is not of much consequence. On the facts and circumstances of the case, the supply of documents in the manner aforesaid on the Advocates for thein the Summary Suit, cannot be said to be a compliance of aforesaid Rules for service of notice on the