Bhatia International Ltd. and anr. Vs. Andhra Cements Ltd. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 1. this company petition is filed under sections 433(f) and 439 of the companies act, 1956 (hereinafter referred to 'the act'), read with rule 95 of the companies (court) rules, 1959, seeking winding up of the respondent-company on the ground that the respondent-company failed to pay off its debts owed to the petitioner, in spite of receiving the statutory notice, and in view of the same, the respondent-company is deemed to become insolvent and is unable to pay off its debts. the petitioners having failed to send the legal notice to the registered office of the company cannot claim that there was no reply to the said legal notice. it is also stated that by their letters, the respondent sought for time for further payment, which clearly shows that there is an admission on the part of the respondents with reference to the liability. since the trading transactions between the parties are not disputed and further when the petitioners have made their demands, the correspondence that took place between the parties clearly show that the respondent has admitted its liability. a perusal of the said letters clearly shows that none of the letter-heads shows that the address given therein is either the registered office or the corporate office. however, during the pendency of the company petition, an advocate filed appearance before the company court and took time, who has in fact participated in the enquiry partially, though not effectively. however, the publication of the admission of the company petition is deferred for a period of four weeks in order to settle the claims of the petitioners, and if the respondent failed to settle the claims of the petitioners, the petitioners are at liberty to get the admission published in vaartha, telugu daily, and the indian express, english daily, both hyderabad and guntur editions.s. ananda reddy, j.1. this company petition is filed under sections 433(f) and 439 of the companies act, 1956 (hereinafter referred to 'the act'), read with rule 95 of the companies (court) rules, 1959, seeking winding up of the respondent-company on the ground that the respondent-company failed to pay off its debts owed to the petitioner, in spite of receiving the statutory notice, and in view of the same, the respondent-company is deemed to become insolvent and is unable to pay off its debts.2. it is stated that the respondent-company was incorporated under the provisions of the act on november 1, 1936. the authorised share capital of the respondent-company is rs. 70 crores. the registered office of the company is situated at chandralok complex, s.d. road, secunderabad, and the administrative office of the respondent-company is located at 6-3-903/ b/1, somajiguda, hyderabad-500 082. the main objects of the respondent-company were to manufacture and sale of cement. it is stated that the first petitioner is a company engaged in the business of trading in different types of imported and indigenous coal and supplies coal to different sectors in india. as a normal business transaction, the first petitioner-company has supplied different types of coal in accordance with the purchase orders issued by the respondent-company from time to time. as per the latest statement of accounts, the respondent-company is liable to pay a sum of rs. 7,95,907 and the said outstanding amount is payable with interest at the rate of 16 per cent. commencing from november 19, 2002 to december 3, 2004, amounting to rs. 2,59,923 totalling to rs. 10,55,830. there is no dispute with the respondent in regard to the quality of the material and the services rendered by the petitioners.3. the second petitioner is the sister concern of the first petitioner and purely engaged in the business of transportation of coal from the ports to the customers of the first petitioner-company. in the case of the respondent, the second petitioner had rendered transportation services for the supply of coal from various destinations as per the instructions of the respondent-company. as per the latest statement of accounts, the respondent-company is liable to pay a sum of rs. 7,18,822 and the interest at the rate of 16 per cent. per annum amounting to rs. 2,34,749 totalling to rs. 9,53,571 which is payable by the respondent-company to the second petitioner.4. it is stated that the first petitioner on its behalf and on behalf of the second petitioner sent several reminders to the respondent-company from august 30, 2001, till march 22, 2006 and requested the respondent-company to disburse the total outstanding amount due to the petitioners. the first petitioner-company by its letter dated june 3, 2003, indicated that they were co-operating with the respondent-company keeping in view of the business terms and were accepting the request of the respondent-company to extend the time period for repayment of their outstanding bills. it is also stated that the respondent-company by its letters dated october 30, 2001, january 9, 2002, january 27, 2002, march 23, 2002, december 18, 2002, march 27, 2003 and june 4, 2003, has admitted that it owes an amount of rs. 12 lakhs and requested time to make the payment, as it was going through serious financial crisis. it is stated that the respondent-company by its letter dated june 26, 2006, has admitted the old dues to the extent of rs. 12 lakhs and agreed to send post-dated cheques, if the first petitioner-company commences the supply of washed coal to them. the respondent also informed that they have certain commitments to financial institutions and payment of sales tax arrears, and as such unable to make payment to the petitioners herein. in spite of repeated assurances as per various letters referred to above, the respondent-company was unable to fulfil their demand of outstanding dues to the petitioners. therefore, a statutory notice under section 434 of the act was issued calling upon the respondent to make payment of the total outstanding amount with interest; failing which appropriate action would be initiated. though the said notice was received by the respondent-company, but the respondent did not give any reply or clear the amounts due. hence, the present company petition.5. a counter is filed on behalf of the respondent disputing and denying the allegations made by the petitioners in the company petition. it is stated that the respondent-company is a sick industrial company as defined under the sick industrial companies (special provisions) act, 1985, and the scheme formulated by the bifr is still under implementation. it is stated that when a reference is pending before the bifr or a scheme formulated by the bifr is under implementation, no petition for winding up of the sick company can be filed without obtaining the prior permission of the bifr as provided under section 22 of the sica. the petitioners have not produced any evidence to show that they have obtained any such permission. therefore, the company petition is liable to be dismissed.6. it is stated that the registered office of the respondent-company is not situated at the address mentioned by the petitioners, but the same is situated at sri durga cement works, sri durgapuram, guntur district, andhra pradesh, from the date of its inception. with reference to the supplies and the amounts due it was admitted that the first petitioner-company had supplied coal to the respondent-company from time to time, but it is not correct to state that the respondent-company owes to the first petitioner in an amount of rs. 7,95,907. it is submitted that except the bare allegations, petitioner no. 1 has not deemed it fit to produce any documents either in the form of invoices or delivery challans or lorry receipts to show that the value of the coal supplied. therefore, the said liability is disputed. similarly, the claim of the first petitioner with reference to the interest also equally denied. the respondent also disputed as to the quality of the coal supplied by the petitioner and contended that it is sub-standard or low quality. similarly, with reference to the second petitioner, the respondent denied having any liability, as the second petitioner did not produce any evidence in proof of the claim made, including the interest. the replies that were stated to have been given by the respondent were also denied, and the petitioners are put to strict proof of the same. however, it is stated that the respondent-company addressed some letters to the first petitioner-company and they have to be looked from the right perspective and they should not be treated as acknowledgments for the alleged debts. the respondent-company was looking after for the supply of the coal for its operations and corresponded with the first petitioner for the said purpose. therefore, the said letters cannot be taken as acknowledgments of the debt, to keep the time-barred debts alive. the respondent denied that both the petitioners issued legal notices calling upon the respondent to pay their respective amounts due to them. it is stated that a perusal of the alleged legal notice dated december 6, 2004, shows that the same was issued only with reference to the first petitioner and there is no reference to the second petitioner at all. even otherwise also, the said legal notice is not a valid, as it does not fulfil the requirements provided under section 434 of the act, by sending the demand notice to the registered office of the company. the petitioners having failed to send the legal notice to the registered office of the company cannot claim that there was no reply to the said legal notice. the respondent denied that there is any legal liability, much less the admitted liability, as was claimed by the petitioners.7. in view of the dispute by the respondent-company, a reply is filed on behalf of the petitioners disputing and denying the allegations that are made by the respondent-company and also filed copies of the accounts showing the admissions made by the respondent as to the admission of the liability. it is also stated that by their letters, the respondent sought for time for further payment, which clearly shows that there is an admission on the part of the respondents with reference to the liability. it is also stated that since the respondent was corresponding from the address of the somajiguda, hyderabad, which was even printed on the letter-heads, the same does not show that it is a corporate office or registered office. therefore, the petitioners were constrained to send even the statutory notice to the same address from which the respondent was corresponding with the petitioners with reference to the amounts payable. the said notice was received by the respondent-company at its address from which it was corresponding. therefore, it is not open to the respondent to contend that notice was not served as is provided under law. it is also stated that since the respondent admitted the liability and sought for time in view of its financial crisis, now it cannot turn round and dispute or deny the liability. therefore, the petitioners sought for admission of the company petition.8. at the time of hearing learned counsel for the petitioner contended that admittedly the petitioners and the respondent were having trade connections, as the first petitioner was supplying the coal as is required by the respondent, while the second petitioner was transporting the same to the respondent's premises from various destinations. since the trading transactions between the parties are not disputed and further when the petitioners have made their demands, the correspondence that took place between the parties clearly show that the respondent has admitted its liability. in view of the said admission, it is not open to the respondent at this stage to deny or dispute the same. even with reference to the statutory notice, since the respondent-company was corresponding from a particular address, the statutory notice was sent to the same address, which was received by the respondent. when such is the position, it is not open to the respondent to take a technical objection that notice was not sent to its registered office. it is not as if the notice was not sent to the company but to any of its employees or directors or to any other address. the notice was addressed to the company and it was received by the company. therefore, there is no merit in the objections in this connection. hence, the company petition is liable to be admitted.9. learned counsel for the respondent, on the other hand, sought to dismiss the company petition solely on the ground that the legal notice was not served on the registered office of the respondent-company. though in the counter various other allegations have been raised, the sole ground on which the respondent sought to dismiss the company petition is that the registered office of the respondent-company is at sri durga cement works, sri durgapuram, guntur district, andhra pradesh, but not the address at somajiguda, hyderabad, to which the statutory notice was sent. in support of his claim, learned counsel for the respondent relied upon a judgment of a division bench of this court in devi travels p. ltd. v. inter globe air transport [2007] 138 comp cas 172, and sought for dismissal of the company petition.10. heard both learned counsel and considered the material on record.11. since the respondent did not advance any argument with reference to the merits of the debt claimed by the petitioners, it would be appropriate only to consider with reference to the contentions advanced by the respondent opposing the admission of the company petition. therefore, the issue to be considered is whether the notice served by the petitioners under section 434 of the act is in accordance with the provisions of the act and therefore, the company petition is liable to be admitted or not ?12. admittedly, the registered office of the company is situated at sri durgapuram, guntur district. the factory premises is also situated at the same address. however, the corporate office is at somajiguda, hyderabad from which the respondent had corresponded with the petitioners with reference to the transactions, and with reference to the claims made by the petitioners for the payment of the outstanding bills. the letters that were sent by the respondent-company to the petitioners were on the letter-heads of the company. a perusal of the said letters clearly shows that none of the letter-heads shows that the address given therein is either the registered office or the corporate office. therefore, after corresponding for nearly more than two or three years, the petitioners have issued the statutory notice, naturally, to the same address from which the respondent was corresponding, and it is not expected to send the said notice to some other place. the factum of receipt of the said notice by the respondent-company was not disputed. but what is contended by the respondent is that as per the statutory provision, the notice has to be served only on the registered office of the company. therefore, the notice sent to the address of the company at somajiguda, hyderabad, is not in compliance with the provisions of the act. therefore, the company petition is liable to be dismissed on that ground alone. learned counsel for the respondent relied upon a decision of a division bench of this court, referred to supra, which was rendered in an appeal filed by the appellant against the order of winding up passed by the company court.13. in that case, admittedly, the notice was not sent to the registered office or to the place from which there was correspondence between the parties, but was sent to the address where the managing director/director was residing. in fact, the said notice sent to the above address was returned unserved. though notice was not served on the respondent debtor, the company petition was filed and notice was sent through the court before admission of the company petition, but the said notice was also returned unserved. however, during the pendency of the company petition, an advocate filed appearance before the company court and took time, who has in fact participated in the enquiry partially, though not effectively. therefore, the company petition was heard, and ordered for winding up of the respondent-company. however, the company filed an appeal, and before the division bench, the contention of the appellant-company was that its registered office was situated at no. 1, mch commercial complex, sardar patel road, secunderabad, but not at the address to which the notice was sent. the notice was actually sent to m/s. devi travels p. ltd., 202, aggarwal bhawan, 35-36, nehru place, new delhi-110 019, where two of the directors are stated to have been residing. however, they are also residing at different address at delhi, as was found by the division bench of this court. however, the contention advanced by the respondent in the appeal was, since the company was represented by a counsel before the company court, who sought for time to file a counter and but did not file the same, it was contended by the creditor that it is not open to the appellant-company to contend that it was not served with the statutory notice. but the court negatived the said contention and held that since no notice was served on the respondent-company, winding up order is not sustainable, and therefore the appeal was allowed and set aside the order of winding up passed by the company court.14. if the facts of the present case are examined in the light of the said judgment, the facts in that case are totally different. that is a case, where notice was not at all served on the company against which winding up order was sought for. on the other hand, it was addressed to some other address, which was returned unserved and basing on that the company petition was filed. in the present case, admittedly, the respondent-company was corresponding from the address to which the statutory notice was sent by the petitioners, and it was received by the respondent, though the claim of the respondent was that the said address was not the registered office of the company. even assuming without admitting that the said address was not the registered address of the respondent-company, but since the respondent-company had corresponded from the said address, which does not disclose where it has its corporate office or registered office from the letterheads, and it would not be open to the respondent to take advantage of the said omission to specify the address of its office, from where it has corresponded. further, since the notice was received by the respondent-company itself, no prejudice would be caused, and if the respondent-company was intended to pay off the debt to the petitioners, nothing prevented it to do so. therefore, the judgment relied upon by the respondent-company is not of any assistance in view of the totally different set of facts under which the said judgment was rendered.under the above circumstances, the company petition is admitted. however, the publication of the admission of the company petition is deferred for a period of four weeks in order to settle the claims of the petitioners, and if the respondent failed to settle the claims of the petitioners, the petitioners are at liberty to get the admission published in vaartha, telugu daily, and the indian express, english daily, both hyderabad and guntur editions.