1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 78 OF 2008 IN COMPANY PETITION NO. 730 OF 2007 M/s. Secure Metrix India Pvt.Ltd .......Appellants 12 Bhaveshewar Darshan (Ori. Defendants) Altamount Road, Mumbai 400 026. versus Sagar Narsian ........ Respondant. ¼ Mahalaxmi Co-op Hsg. Society, (Ori.Petitioner) J.K. Sawant Marg, Matunga West Mumbai 400 016. Mr. V.R. Dhond i/b Mr. Rajesh Desai for the Appellant Mr. Prakash Shinde i/b M/s. M. Dhruve & Co. for the respondent. CORAM: S. B. MHASE & R. V. MORE, JJ. DATED: 14th AUGUST, 2008. JUDGMENT: 1. Admit. By consent of parties, taken up for final hearing. Heard the learned counsel for the respective parties. 2. The appeal takes an exception to the order dated 11- 12-2007 passed by the learned Single Judge in Company Petition 2 No. 730 of 2007 where under the appellant was directed to deposit aggregate sum of Rs. 25 lacs in this court within six weeks from the date of the order, failing which the Company Petition to stand admitted without further reference to the court. The facts giving rise to the present appeal are as follows: 3. The respondent filed Company Petition No.730/07 against the appellant with a request for winding up the appellant company. The respondent contended that he was appointed as a Director of Marketing and Business Development of the appellant company vide letter dated 10-4-2003. The letter was signed by the Vice-President of the appellant company. On 1-6- 2003 the respondent took charge of the office of the Director of Marketing and Business Development of appellant company,. It was further contended that by another letter dated 29-1-2004 the respondent was appointed as a full consultant for the period of three years and designated as Chief Executive Officer of the appellant company. It was the specific contention of the respondent that he has not received any remuneration inspite of the assurances given by the above said appointment letter. Repeatedly demands were also made by the respondent, however no payment was received. The respondent thereafter issued statutory notice on 9-6-2005 under sections 433 and 434 of Companies Act 1956 addressed to the Chairman of the appellant company on the address mentioned as 12 Bhaveshwar Darshan, 3 Altamount Road, Mumbai 400 026. Inspite of service of statutory notice, no payment was received and thereafter, as stated above, the Company Petition came to be filed for the relief of winding up. 4. The appellant company after service of statutory notice, filed reply affidavit taking several objections. It is stated that petition is liable to be dismissed on the ground that the winding up notice as well as Petition was not served on the registered office of the company, as required under the provisions of Companies Act. In so far as the merit is concerned, it is stated that the appellant company was not liable to pay any amount to the respondent as his appointment itself was questionable. It was specifically contended that the persons, who has signed the appointment letter were not authorised to sign for and on behalf of the appellant company. In the premises, it was prayed that the company petition be dismissed. 5. The learned Single Judge who heard this petition after hearing the learned counsel for the respective parties, concluded that the defence taken by the appellant company about invalid appointment is frivolous and not bonafide. So far as the challenge to the maintainability of the company petition for want of service of statutory notice on the registered address of the appellant company is concerned, the learned Single Judge held that this objection was not raised while giving reply and the reply 4 was given on merits only, and therefore the appellant company deem to have waived the objection of statutory notice not having been served on the registered address of the appellant company. The learned Single Judge having found that the respondent has made out a case and appellant-company' s defence are frivolous and not bonafide, directed the company to deposit in aggregate sum of Rs. 25 lacs in this court within a period of six weeks from the date of order, failing which petition to stand admitted without further reference to the court. 6. The learned counsel Mr. Dhond appearing for the appellant-company submitted that the learned Single Judge could not have admitted the company petition even though the statutory notice was not served on registered office of the appellant-company. To substantiate his submission, he relied upon a Division Bench judgment of this court reported in Company cases Vol.70 page 31 in N.L. Mehta Cinema Enterprises (P) Ltd. Vs. Pravinchandra P. Mehta. Per contra the learned counsel for the respondent Mr. Prakash Shinde supported the impugned order and submitted objection that the statutory notice ought to have served on the registered address of the company, is deemed to have been waived by the appellant- company as this objection was not raised in reply given by the appellant-company to the statutory notice issued by the respondent. 5 7. Having heard the respective counsel for the parties, we find merit in the appeal. In our considered view, the issue regarding service of the statutory notice on registered office of company is no more res-integra and is covered by the Division Bench judgment in N.L. Mehta Cinema Enterprises (P) Ltd. (supra). The facts of the present case and the facts before the Division Bench judgment in N.L. Mehta Cinema Enterprises (P) Ltd. are similar. In N.L. Mehta's case notice was sent to company' s administrative office at `D' Block , Office Premises, Wankhede Stadium, Churchgate, Bombay. Whereas the registered office of the company is situated at 161, Taikalwadi Road, Mahim, Bombay 400 016. The learned Single Judge overruled similar objection on the ground that the company never challenged the validity of service of notice at any stage till filing of the affidavit and secondly under Rule 33 of the Companies (Court) Rules 1959, service shall not be deemed invalid by reason of any defect, provided the court is satisfied that such service is in other respects sufficient, and petition was made absolute in terms of prayer clauses (a) and (b). In appeal before the Division Bench it was held that Rule 33 of the Companies (Court) Rules 1959 applies only to service under the rules and not to the service under other statutory provisions such as section 434 of the Companies act 1956. It was further held that section 434 of the Companies Act contain a legal fiction, available against a 6 company otherwise solvent which may not respond to a notice of demand made by the creditors. Therefore to raise a legal fiction under section 434 of the Act, that the company is unable to pay its debt, the requirement of section 434 has to be strictly complied with. It was held that the failure of the company to point out the irregularity in service till filing of its affidavit in reply to the petition would not disentitle the company from relying on the plea of illegality at the stage of hearing of the petition, and ultimately concluded that section 434 clearly requires the notice of demand to be sent to the company at its registered office and service of notice at the administrative office of the company was not sufficient to raise a presumption under section 434. Consequently appeal was allowed and company petition was dismissed. 8. Turning to the facts of the present appeal, there is no dispute that the statutory notice was addressed to the Chairman of the appellant company and served by the respondent on the address mentioned as 12 Bhaveshwar Darshan, Altamount Road, Mumbai 400 026. Admittedly the notice was not served on the registered address of the company. Therefore the ratio of the Division Bench judgment in N.L. Mehta' s case (supra) is clearly applicable to the facts and circumstances of this case. The company petition filed by the respondent for want of service of statutory notice on the registered address of the appellant 7 company deserves to be dismissed. Consequently the appeal is to be allowed. In the facts and circumstances mentioned above we pass following order. ORDER The appeal filed by the appellant-company is allowed and the order dated 11-12-2007 passed in Company Petition No.730/07 is quashed and set aside. The Company Petition stands dismissed. However, liberty to the original petitioner to file fresh petition after compliance of the statutory provisions if he desires. In case fresh petition is filed by the original petitioner, all rights, objections and points are kept open for both the sides to agitate before the court. (R.V. MORE, J.) (S. B. MHASE, J.)