DATA COMPUTER SERVICES Vs. NORTHERN DIGITAL EXCHANGES LTD

JUDGEMENT

(1.) DATA Computer Services, a proprietorship concern, has brought this petition for winding up of the respondent-company under sections 433, 434, 439 of the Companies Act, 1956, on the ground that the company is unable to pay its debt in spite of notice. The court has issued notice of this petition to the respondent-company. During the pendency of this petition, a reference was made under section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985. The company was declared as a sick industrial company under th e provisions of that Act by the Board for Industrial and Financial Reconstruction. As a result of these proceedings, which were noticed, vide order dated January 20, 1995, the proceedings before this court were adjourned sine die. On due notice, the company was directed to be amalgamated with Crompton Greaves Ltd. The final order of amalgamation was passed by the Board on December 26, 1995. Thereupon, the company petition was revived on the application of the parties to the petition, vide order dated April 25, 1996. C. A. No. 170 of 1994 had been filed by the respondent-company wherein Crompton Greaves Limited was permitted to be substituted in the place of the respondent-company, The order dated July 18, 1996, passed by the company judge on C. A. No. 170 of 1994, reads as under : "after hearing counsel for the parties, C. A. No. 170 of 1996 is allowed and the respondent, Northern Digital Exchange Ltd. , is permitted to be substituted by Crompton Greaves Ltd. Reply on behalf of Crompton be now filed in Company Petition No. 100 of 1994 within four weeks with advance copy to counsel opposite. Adjourned to August 8, 1996. "

(2.) AFTER the passing of the said order, the memorandum of parties was amended to incorporate the substituted company as the sole respondent, Crompton Greaves Limited. Earlier, a reply had been filed on behalf of the then sole respondent, Northern Digital Exchanges Limited, in which a number of preliminary objections were taken and the alleged liability was disputed on the merits as well. After substitution of the present respondent-company, it filed reply/written statement in detail disputing the liability. The main objection that was taken on behalf of the present respondent-company related to the territorial jurisdiction of this court to entertain the present winding up petition in view of the provisions of section 10 (1) (a) of the Companies Act.

(3.) THERE is no dispute as to the fact that the registered office of the sole respondent-company is at 1, Dr. V. B. Gandhi Marg, Bombay (now named as Mumbai ). Clause (2) of the memorandum of association of the respondent-company had specifically provided that the registered office of the company shall be located in Maharashtra. The fact that the registered office of the company is at Bombay has not been disputed even on behalf of the petitioner. In fact this could not even be disputed because the purchase orders filed by the petitioner-company itself on record with the original petition indicate that the registered office Of the present respondent-company was at Bombay, because purchase orders were issued on the forms of this company. Learned counsel for the respondent has also not disputed the fact that the erstwhile respondent-company has fully and finally been amalgamated into the present respondent-company.