Case: In Re: Modern Dekor Painting Contracts Private Limited and Modern Dekor Painting Contracts Private Limited Vs. Jenson and Nicholson Limited and Another

The notice of the petition referred to in r. 28 is not a letter addressed by the petitioning creditors advocate to the company intimating the date fixed by the court for the admission of the petition. This is made clear by the fact that after the admission of the petition, a notice has to be served upon the company and this is made amply clear by the said sub-r. (1) of r. 28 which states that the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. Therefore, the notice contemplated by sub-r. (1) of r. 28 is a notice which is to be served by the registrar after the winding-up petition is admitted. The Registrar is defined in r. 2 (11) : 2. (11) registrar means in the High Court, the Registrar of the High Court, and includes the prothonotary, master and assistant master and such other officer as may be authorised by the chief Justice to perform all or any of the duties assigned to the Registrar under these rules, and in the District Court, such officer of that court as may by authorised by the High Court to perform all or any of the duties assigned to the Registrar, under these rules. ( 18 ) THEREFORE, the prothonotary, master and assistant master or such other officer as may be authorised by the Chief Justice to perform all or any of the duties of the Registrar under these rules is the person who is made responsible for the service of the notice. Therefore, a letter intimating the date fixed for the admission of the petition given to the company is an altogether different aspect of the matter. This letter which has been termed as a notice in the arguments advanced before us is not under the Companies (Court) Rules, such a notice has not been provided for by the Companies (Court) Rules and such notice cannot be made a foothold for the submission that such a notice will be a deemed notice of the winding-up petition. Rule 28 is quite clear. Sub-rule (2) of r. 28 also provides the mode and the manner in which service upon the company is to be effected. In the first part of sub-r. (2) of r. 28, a personal service upon the company is contemplated while in the company, then service is to be effected by registered post. Again that r. 28 applies with all its force to a winding-up petition is made clear by the second of part sub-r. (2) of r. 28. The second part of sub-r. (2) of r. 28 provides : where the company is being wound-up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose of winding-up the affairs of the company. ( 19 ) THE word also in this part makes it amply clear that the petition for winding-up has to be served upon the company. For this reason also, it is difficult to accept the submission of Shri tulzapurkar that to a winding-up petition, the only rules that are applicable are the rules to be found in Pt. III of the Companies (Court) Rules. It is also difficult to accept the submission of shri Tulzapurkar that the advertisements published in the newspapers and in the Government gazette should be taken as service upon the company. ( 20 ) THIS conclusion is further fortified by the subsequent rules, viz. , rr. 29 and 31. Rule 29 provides : save as otherwise provided by these rules and subject to any directions of the judge or registrar, the petitioner, applicant or any other person having the conduct of proceedings in court, shall be responsible for the service of all notices, summonses and other processes, for the advertisement and publication of notices required to be effected by these rules or by order of court. ( 21 ) WHILE r. 28 provides that the Registrar shall send the notice, rule 29 makes the petitioning creditor responsible for the service of notice. Here also, it will be noticed that the rules make a distinction between service of notice and issue of advertisement. Therefore, even if an advertisement is required to be published as provided in r. 96, it does not exclude service of notice upon the company. Rule 31 makes this position further clear. It states : in default of compliance with the requirements of the rules or the directions of the judge or registrar, as regards the advertisement and service of the petition, the petition shall, on the date fixed for hearing be posted for orders of the judge may either dismiss the petition or give such further directions as he thinks fit. ( 22 ) RULE 31 also distinguishes between issuance of an advertisement and service of notice upon the company. The provisions of rr. 27,28,29 and 31 make a complete provision in regard to the service of notice upon the company and in regard to the issuance of advertisements in newspapers and they apply ex proprio vigore to a winding-up petition. They exclude by necessary implication deeming service as submitted before us. There is no such deeming service contemplated by the Companies (Court) Rules, 1959. ( 23 ) THE next question is what is the effect of non-compliance of the notice as contemplated by rr. 27,28, and 29 of the Companies (Court) Rules upon the company The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit. ( 24 ) SINCE the notice of the winding-up petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]( 7 ) IT is difficult to accept the submission of Shri Tulzapurkar. It must at first be stated that there is no provision in the Companies (Court) Rules, 1959, or in any other rules for acceptance of a winding up petition, but a practice has developed in this court of placing a winding up petition before the court for acceptance and this practice and procedure which is a long standing practice and procedure has been saved by r. 6 of the Companies (Court) Rules, 1959, Rule 6 provides :save as provided by the Act or by these rules, the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court.( 15 ) IT is also difficult to accept the submission of Shri Tulzapurkar that rr. 27, 28, 29 and 31 do not apply to ap petition. Rule 28 of the Companies (Court) Rules, 1959, is as under : 28. Service on company.(1) Where a petition is presented against a company, it shall be accompanied by a notice of the petition in the prescribed form together with a copy of the petition for service on the company and an envelope addressed to the company at its registered office or its principal place of business and sufficiently stamped for being sent by registered post for acknowledgment. The Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. (2) Every petition and, save as otherwise provided by these Rules or by an order of court, every application shall, unless presented by the company, be served on the company at its registered office, or, if there is no registered office, at its principal or last known principal place of business, by leaving a copy thereof with an officer or employee of the company and in case no such person is available, in such manner, as the judge or Registrar may direct or by sending a copy thereof by prepaid registered post addressed to the company at its registered office, or if there is no registered office, at its principal or last known principal place of business, or to such person and at such address as the judge or Registrar may direct. Where the company is being wound up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose ofp the affairs of the company.It is also difficult to accept this submission of Shri Tulzapurkar. The opening words of r. 28 (1) are where a petition is presented against a company and the opening words of. (2) of r. 28 are every petition. Therefore, neither inp petition excepted. A plain reading of r. 28 shows that it is applicable to every petition filed against a company and it admits of no exception. Furthermore, the language or r. 28 shows that the service of notice upon the company is mandatory. The words every petition. . . every application shall, unless presented by the company be served on the company are not merely directory but also mandatory. Reading rr. 27 and 28 together, the prescribed form referred to in r. 28 is Form No. 6 which is prescribed by r. 27The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit( 24 ) SINCE the notice of thep petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside.