((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.367 OF 2006 Huntsman International (India) Pvt.Ltd. Petitioner versus Mascot Automation Pvt.Ltd. Respondent Alpana Ghone with Mustafa Motiwala, Jay Joshi, Rupen Kanawala i/by Mustafa & Motiwala for petitioner. Ramchandra Yadav a/w S.U.Kamdar for respondent. CORAM : A.M.KHANWILKAR, J. DATE : 21st January 2008 PC : 1. Heard counsel for the parties. Perused the pleadings and documents on record. The petitioner’s claim is based on goods sold, delivered and supplied to the respondent company from time to time as per the orders placed by the respondent company. According to the petitioner, the respondent has acknowledged its liability to pay a sum of Rs.1,12,58,332=52 Ps. as on 31st March 2005 which is reinforced from the document at Exhibit-Q, page no.33 issued by the respondent on its letter head accepting the position that it is a reconciliation statement between the parties as on 31st March 2005. According to the petitioner, this reconciliation statement ((-2-)) MST represents all the claims inter se including adjustment for the value of the defective goods. The petitioner further asserts that in spite of repeated demands, the respondent failed and neglected to pay any amount to the petitioner. As a result, the petitioner issued statutory notice on 19th October 2005, which, according to the petitioner, was duly served on the respondent, as can be seen from the acknowledgement Exhibit-S at page 35. As no payment was received in spite of statutory notice, the petitioner has been driven to file the present petition under sections 433 and 434 of the Companies Act. 2. The respondent having entered appearance has filed reply opposing the present petition. The principal contention raised on behalf of the respondent is one of non receipt of statutory notice by the respondent. The respondent has disputed the acknowledgement produced by the petitioner at page 35 on the ground that no seal of the respondent company is appearing thereon. Besides, the purported signature appearing on the acknowledgement, does not belong to any of its employees. It is also stated that at the relevant time the registered office of the ((-3-)) MST respondent company was closed on account of shifting. Besides, it is asserted on behalf of the respondent that the petitioner had been sending all other communications in the past to the respondent on its site office and the present statutory notice has been sent on the registered office so that the respondent can be taken by surprise by way of present petition for winding-up. 3. Insofar as merits of the claim is concerned, according to the respondent, some of the goods supplied by the petitioner were of inferior quality. The respondent had raised those issues at the earliest opportunity which position is reinforced from the documents at pages 137, 138 and 139 whereby the respondent has raised debit notes against petitioner company while returning the defective goods. According to the respondent, the respondent was not liable to pay the entire claim amount as demanded by the petitioner. 4. Having considered the rival submissions and going through the materials on record I have no hesitation in taking the view that the stand taken on behalf of respondent on both counts is ((-4-)) MST unacceptable. Insofar as ground regarding non service of statutory notice is concerned, the petitioner has established the factum of service by producing acknowledgement Exhibit-S, page no.35. In law, presumption of service will have to be drawn in favour of the petitioner as the notice was sent by R.P.A.D. and as per the postal endorsement has been acknowledged. To get over that position, the first plea taken on behalf of the respondent is that the acknowledgement does not bear the seal of the respondent company. In my opinion, the petitioner has justly argued that the law does not require the petitioner to produce acknowledgement that bears the seal of the respondent company. It is sufficient for the petitioner to send the statutory notice to the registered office of the respondent company, which formality has been complied with by the petitioner. The legal presumption of service will have to be rebutted by the respondent. The respondent has merely stated that the signature appearing on the acknowledgement does not pertain to any of its employees. Besides these bare words, no other material is produced in the reply affidavit. ((-5-)) MST 5. In my opinion, the defence taken on behalf of the respondent is only to create a gloss so as to defeat the present action of the petitioner. The petitioner had sent the statutory notice on the registered address of the respondent company which was sufficient compliance by the petitioner. The postal endorsement clearly indicates that the said notice was duly served on the address mentioned in the acknowledgement. The defence of the respondent that at the relevant time the registered office of the respondent was closed, does not take the matter any further for the respondent. The fact that the petitioner had sent communications in the past to the respondent on the site address of the respondent, is also of no avail. As aforesaid, the petitioner was liable to send the statutory notice only on the registered office of the respondent and not on any other address. Whereas, if the petitioner was to send the statutory notice on any other address, that would have been a defective service not recognised by the statutory provisions. In my opinion, the petitioner has established the factum of service of statutory notice on the respondent. The fact that the respondent in spite of institution of the present petition and having entered ((-6-)) MST appearance, has not shown willingness to pay even the admitted liability to the petitioner, is clearly indicative of the fact that the respondent is raising all possible issues only to create gloss and taking defence which is untenable and not bona fide. 6. Insofar as merits of the claim is concerned, the argument of the respondent that the respondent had raised dispute regarding the quality of some of the goods and has also issued debit notes against the petitioner, clearly overlooks that the reconciliation statement arrived at between the parties which was issued on the letter head and signature of the Authorised Officer of the respondent concedes the position that the respondent is liable to pay a sum of Rs.1,12,58,332=52 Ps. as on 31st March 2005. It is not in dispute that the respondent has not paid any amount to the petitioner after the said reconciliation statement was recorded. The respondent has placed reliance on documents at pages 137, 138 and 139. However, those documents pertain to period prior to reconciliation statement. It presupposes that these amounts have been taken duly note of when the reconciliation statement was prepared for the ((-7-)) MST period as on 31st March 2005 (Exhibit-Q). Assuming that the said amount was to be taken into account and the respondent’s plea was to be accepted as it is, even then the said amount does not exceed around Rs.33.30 lakhs. Even if that amount was to be excluded from the claim amount of the petitioner, the respondent would be still liable to pay a sum of Rs.80 lakh to the petitioner forthwith which the respondent had agreed to pay having issued the reconciliation statement as on 31st March 2005. I have no hesitation in forming opinion that the respondent company is unable to pay its debt. To test the bona fides of the respondent, instead of straight way admitting this petition, I am inclined to pass conditional order which will provide one opportunity to the respondent. 7. In the circumstances, I proceed to pass following conditional order :- a) The respondent shall deposit a sum of Rs.80,00,000.- (Rs.Eighty lakh only) in this Court within six weeks from today which amount, if deposited, the petitioner is permitted to withdraw the same. The petitioner would then be free to institute suit for recovery of the ((-8-)) MST balance unpaid amount including interest accrued on the balance outstanding amount as well as the amount already deposited by the respondent in this Court, which will be withdrawn by the petitioner. In that event, the petition will stand disposed off with liberty to the petitioner to pursue such claim as may be advised and permissible by law; b) In the event the respondent fails to deposit the amount as aforesaid within the specified time, this petition shall stand admitted forthwith without further reference to the Court. The petitioner would then be free to advertise admission of the present petition without further reference to the Court; c) In the event the the petitioner is required to advertise admission of the present petition as aforesaid, shall publish the advertisement in two local newspapers, namely, "Free Press Journal", "Navshakti" and in the Maharashtra Government Gazette. For that purpose, the petitioner shall deposit an amount of Rs.10,000/- (Rs.Ten Thousand only) with the Registrar (O.S.)/ Prothonotary & Senior Master towards the publication charges within three weeks from expiry of six weeks ((-9-)) MST period; d) The petitioner shall intimate the respondent about the directions issued under this order forthwith. (A.M.KHANWILKAR, J.)