KOTAK MAHINDRA BANK LTD Vs. HERMONITE ASSOCIATES LTD

JUDGEMENT

(1.) This application, under Section 466 r/w Section 518(1)(b) of the Companies Act, 1956 (hereinafter referred to as the Act) on behalf of Hermonite Associates Ltd (hereinafter referred to as the respondent-Company) by its Director Shri Krishan Goenka (hereinafter referred to as the respondent-2), was filed on 11th August 2008.

(2.) The applicants seek to recall/set aside the ex-parte Order dated 5th December, 2007 by which the winding up petition under Sections 433(e), 434 (1)(a) and 439 of the Act filed by Kotak Mahindra Bank-the petitioner was admitted and the Official Liquidator attached to this Court was appointed as a provisional liquidator with the direction to take possession of assets and books of accounts of the respondent-Company and proceed thereafter in accordance with the provisions of the Act.

(3.) The application raises two contentions. Firstly, the statutory notice under Section 434(1)(a) of the Act was not served at the registered office of the respondent-Company and was returned back with the remark closed office and therefore presumption under the said Section does not arise. Secondly the respondent company was not served with the notice of hearing in the winding up petition. It was the duty of the petitioner to serve the respondent-Company. It is stated that consortium of banks have filed O.A. No. 186/1999 before the Debt Recovery Tribunal-II and the petitioner herein has filed an application under Order XXII, Rule 10 and Order VI, Rule 17 of the Code of Civil Procedure, 1908 and Section 19 (25) of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 for being substituted in place of ICICI on the basis of Deed of Assignment which is pending. It is contended that notice on the winding-up petition could have been served on the counsel who were appearing on behalf of the respondent-Company before the Debt Recovery Tribunal-II. It is further alleged/contended that the respondent no.2 was not available at the two addresses mentioned in the petition.