Case: Real Time Interactive Media Private Limited Vs. Metro Mumbai Infradeveloper Private Limited

The company issued two separate cheques of Rs.5 lakhs each dated 10th January, 2012 and 15th February, 2012 towards part payment. Both these cheques were dishonoured on presentation. Thereafter, the company paid a sum of Rs.2,99,000/and further issued four post dated cheques for a total amount of Rs.7 lakhs towards part payment of its total outstanding liability. Thereafter, company issued further four cheques dated 22nd March, 2012, 27th March, 2012, 9th April, 2012 and 16th April, 2012 for a total amount of Rs.2,01,000/towards further part payment of its outstanding liability. As some of the cheques were dishonoured, petitioner called upon the company once again to make the payments. Respondent company through their Advocates letter dated 16th April, 2012 requested petitioner to return the post dated cheques and further assured that the entire outstanding would be paid within three months from 16th April, 2012.4. There are various correspondence from the company. To cut the matter short, the company paid in installments a total amount of Rs.5 lakhs and as on 16th April, 2012 after adjusting this Rs.5 lakhs from the total invoice of Rs.15,49,995/there was a balance outstanding of Rs.It should be noted that the invoices raised also mentioned that interest will be charged if not paid on or before the due date. In the Agreement, it is mentioned that the credit period offered was 45 days from the date of bills. As no payments came forth, petitioner caused statutory notice dated 27th May, 2014 to be issued to respondent company. It is stated in the petition that the company has not replied to the statutory notice issued under the provisions of Companies Act, 1956.5. On record there is an affidavit of one Pradeep Kargutkar affirmed on 27th September, 2016 confirming advertising the petition in Free Press Journal (in English) and Navshakti (in Marathi) and also in the Maharashtra Government Gazette. There is a service report dated 31st August, 2016 filed by the Company Department stating that the notice sent under Rule 28 of the Companies Court (Rules), 1959 has been returned with the endorsement left. Mr. Randeria, counsel for petitioner states that the recent MCA website extract indicates the status of the company as Strike Off. At the same time, Mr. Randeria also points out that the registered address shown in the Company Master Data is the same address to which notice under Rule 28 has been sent and that is the same address which reflected even in the cause title to which statutory notice was also sent. As notice under Rule 28 has been sent to the registered address, which appears in the Company Master Data, I am inclined to accept the notice under Rule 28 has been effectively served.

Court's reasoning:
8. Though it is not clear the reason why the companys name was struck off, Section 248 (1) empowers the Registrar to remove the name of company from the register of Companies but before he does that he shall send a notice to the company and all the directors of the company, of his intention to remove the name of the company from the register of companies and requesting them to send their representations along with copies of the relevant documents, if any, within a period of thirty days from the date of the notice. At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. At the same time, nothing in Section 248 shall affect the power of the Court to wind up a company the name of which has been struck off from the register of companies. The effect of company notified as dissolved is that the company shall on and from the date mentioned in the notice undersubsection (5) ofSection 248 cease to operate as a company and the Certificate of Incorporation issued to it shall be deemed to have been cancelled from such date except for the purpose of realising the amount due to the company and for the payment or discharge of the liabilities or obligations of the company. Therefore, it is clear that just because the name of the company is struck off the register under Section 248 of the Companies Act, 2013, that will not come in the way of the Court to pass an order winding up of company.Therefore, even under the Companies Act, 1956, if the Registrar of Companies was to strike off the name of the company from the register, that would not affect the power of the Court to wind up the company the name of which has been struck off the register.10. In the circumstances, there is no bar in winding up the company. It should be noted that the company has not filed any affidavit in reply opposing the petition. Therefore, the averments in the petition are not controverted. Even to the statutory notice, no reply has been filed. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.