THE HON’BLE Ms. JUSTICE G. ROHINI COMPANY PETITION No.105 OF 2010 Dated: 04.03.2011 In the matter of Companies Act, 1956 (1 of 1956) And In the matter of M/s. Kondapur Towers Private Limited Between: M/s. Teekays Interior Solutions Private Limited, regd. Office at # 22, N.J. Chambers, V.N. Road, Shivajinagar, Bangalore-60 051, rep. by its Senior Accounts Executive Sri Edem Prashan Kumar … Petitioner And Kondapur Towers Private Limited, Corporate office : at 8-2-609K, 2nd Floor, Karvy centre, Road No.10, Banjara Hills, Hyderabad-34, rep. by its Directors (a) Mr. Yelamanchili Yugandhara Butchibabu (b) Mr. Sitarama Raju Alluri .. Respondents THE HON’BLE Ms. JUSTICE G. ROHINI COMPANY PETITION No.105 OF 2010 ORDER : This Company Petition is filed under Sections 433 (e) (f) and 434 (1) (a) and 439 of the Companies Act, 1956 for winding up of the respondent company – Kondapur Towers Private Limited and to appoint the Official Liquidator attached to this Court as its Liquidator. I have heard the learned counsel for both the parties. The respondent is a company registered under the Companies Act, 1956, having its registered office at Hyderabad. It is not in dispute that the respondent company awarded a contract viz., interior furnishing works and etc., in their Show Flat Complex at Kondapur in favour of the petitioner vide work order dated 03.01.2008 for a total amount of Rs.87,96,833-71ps and the same was executed by the petitioner. It is pleaded that after completion of the work, the petitioner had raised a final bill dated 24.07.2008 for a sum of Rs.59,39,862-50ps for ground floor and for Rs.70,14,672-19 for first floor and the same was acknowledged by the respondent on 24.09.2008 for a sum of Rs.1,29,54,534-69ps. Subsequent to the submission of the bill, the respondent has issued revised work order dated 17.10.2008 for an amount of Rs.1,26,89,300/- including discount, VAT and service tax. After measurement checking the total bill was certified for Rs.1,26,97,067-62ps which was accepted and acknowledged vide payment advice dated 25.10.2008. Later there was a difference in service tax calculation due to change in tax structure during the course of the project amounting to Rs.1,07,820-62 ps and the same has been reduced from the final bill and thus the balance due to the petitioner is Rs.1,25,89,247/-. It is submitted by the petitioner that the respondent has paid Rs.1,02,31,764/- after deducting a sum of Rs.16,13,020/- towards TDS and VAT and retention amount of Rs.7,44,463/-, totalling to Rs.23,57,483/-. However the respondent failed to pay the said amount in spite of the demands made by the petitioner. Ultimately the petitioner got issued a legal notice dated 9.11.2009 calling upon the respondent company to pay the said amount of Rs.23,57,483/- together with interest @ 18% p.a. Alleging that the respondent failed to respond, and that the respondent company was commercially insolvent and it was not in a position to meet its liabilities, the present petition for winding up has been filed. In the counter-affidavit filed on behalf of the respondent company, it is contended that the petitioner’s entitlement to receive the payment was subject to conducting joint inspection of the premises in question and issuance of final clearance certificate by the G.M. of the respondent company as per the terms and conditions of the work order. It is further contended that the amount claimed by the petitioner had not yet been determined and in fact the respondent had been requesting the petitioner to cooperate for conducting joint inspection of the premises and determine the amounts payable. While claiming that the statutory notice dated 9.11.2009 said to have been issued by the petitioner was not received by the respondent, it is further contended that whereas the registered office of the respondent company, which was initially located at Karvy centre, was shifted to a new premises w.e.f. 17.06.2009 and the necessary Form-18 had also been filed with the Registrar of Companies intimating the said fact, the legal notice dated 9.11.2009 was issued by the petitioner to the respondent company at its corporate office at Karvy centre. As the said notice was not in compliance with Section 434 (1) (a) of the Companies Act, 1956, on that ground also the company petition is liable to be dismissed in limini. On merits, it is contended that the allegation that the respondent company was unable to pay its debts is without any basis and merely because the respondents failed to pay the amounts in response to the notice said to have been issued by the petitioner under Section 434 (1) of the Companies Act, it cannot be concluded that the respondent was unable to pay its debts and commercially insolvent. I have heard the learned counsel for both the parties. Though it is contended by the respondents that the amount payable to the petitioner was yet to be determined and no joint inspection of the premises in question was conducted, the payment advice issued by the respondent company dated 25.10.2008 and the subsequent letter dated 1.4.2009 show that the amount payable to the petitioner was already determined at Rs.23,57,483/-. Hence a prima facie case has been made out to show that the respondent -is liable to pay a sum of Rs.23,57,483/- towards the works executed by the petitioner under the revised work order dated 17.10.2008. However the question that requires consideration is whether any case has been made out by the petitioner to order winding up of the respondent company? It is pleaded in the company petition that the petitioner got issued a statutory notice dated 5.11.2009 calling upon the respondent to pay Rs.23,57,483/-together with interest at the rate of 18% p.a. within 30 days failing which proceedings would be initiated for winding up under Section 433 (e) of the Companies Act. However nothing could be placed before this Court to show that the said notice was actually served on the respondent company. It is also relevant to note that the notice dated 5.11.2009 was issued to the corporate office of the respondent company at “8-2-609K, 2nd Floor, Karvy Centre, Road No.10, Banjara Hills, Hyderabad”. However the specific case of the respondent is that the said registered office had been shifted in accordance with Section 146 of the Companies Act to a new premises namely 5th Floor, Roxana Towers, Greenlands, Hyderabad and the necessary Form-18 was filed before the concerned Registrar of Companies informing that the registered office had been shifted to the new premises w.e.f. 30.10.2008. It is also stated that its registered office was once again shifted to its site office namely 113-115, Kondapur Village, Near Masjid Banda, Opp: HCU Bus-Depot, Serilingampally Mandal, Hyderabad District w.e.f. 17.06.2009 and Form-18 had been filed with the Registrar of Companies intimating the said fact. To substantiate the said plea, the respondent has placed before this Court the copies of Form-18 together with the extracts of the minutes of the meeting of the Board of Directors of the respondent company, dated 30.10.2008 and 17.06.2009 wherein resolutions were passed according consent to change the registered office of the company. Section 434(1) (a) of the Companies Act provides for a statutory presumption as to the inability of the company to pay its debts where a creditor has served on the company a demand by delivering at company’s registered office by registered post or otherwise to pay the sum due and the company has for three weeks thereafter neglected to pay the same. Service of the said notice at the registered office of the company is mandatory to draw a statutory presumption as to the inability of the company to pay its debts. Admittedly the notice dated 5.11.2009 in the instant case was not issued to the registered office of the respondent company at 113- 115, Kondapur village where it has been functioning w.e.f. 17.6.2009. Hence I find force in the contention of the learned counsel for the respondent that no statutory presumption under Section 434 (1) (a) as to the inability of the respondent to pay its debts can be drawn. Except the plea that the respondent failed to respond to the statutory notice under Section 434 (1) (a), no other material is placed before this court by the petitioner to show that the respondent company is commercially insolvent and is unable to pay its debts. In fact, the petitioner could not even place before this Court any material to show that the statutory notice under Section 434 (1) (a), dated 5.11.2009 was actually served on the respondent company. Hence it has to be concluded that there is no notice at all under Section 434 (1) (a). As already expressed above, no other material is available before this Court to substantiate the allegation that the respondent is commercially insolvent. Thus it is clear that the petitioner has miserably failed to make out any case to order winding up under Section 433 (e) r/w Section 434 (1) (a) of the Companies Act. Accordingly, the Company Petition is dismissed at the stage of admission. _____________ G. ROHINI, J. Dt. 04.03.2011 gbs