SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.41 OF 1999 Shri Purshottam Maruti Mane & Anr. ...Petitioners Versus M/s.Toto Farm Products Ltd. ...Respondents ....... Mr.R.P.Lote for Petitioners. Mr.Baptist D’Souza for Respondents. ...... CORAM: CORAM: CORAM: A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. A.M.KHANWILKAR, J. NOVEMBER NOVEMBER NOVEMBER 10, 2008. 10, 2008. 10, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. By this Petition, Petitioners seek winding up of the Respondent Company on the assertion that the Petitioner had deposited aggregate sum of Rs.2,00,000/- (Rupees Two Lakhs) by way of two separate deposits in the sum of Rs.1,00,000/- (Rupees One Lakh) each. The first deposit was on 15th March 1990 in the sum of Rs.1,00,000/-, for which, receipt has been duly issued by the Respondent Company under the signature of the : 2 : Managing Director. The receipt clearly mentions that amount of Rs.1,00,000/- has been received from the Petitioners for and on behalf of the Company and will be paid on demand with interest at the rate of 18% per annum. The other deposit is by way of fixed deposit for which separate receipt has been issued under the signature of cashier/accountant dated 22nd November 1990. The stamped receipt clearly indicates that the amount was received from the Petitioners by way of demand draft. Insofar as this receipt is concerned, except the fact that the amount was received by way of fixed deposit, no other terms and conditions of such deposit has been spelt out. The Petitioners, however, in Paragraph 8 of the Petition have categorically asserted that the said deposit was given to the Respondent Company on interest at the rate of 15% p.a. to be paid on demand. According to the Petitioners, since the amount remained unpaid for sufficiently long time, the Petitioners called upon the Respondent Company to pay the outstanding dues along with interest accrued on the original deposit. Since no response was received from the Company, the Petitioners issued two separate statutory notices both dated 14th February : 3 : 1998. In Paragraph 12 of the Petition, it is clearly asserted that the said statutory notice was duly served in the Office of the Respondent Company at its registered office at Girgaum, Mumbai by hand delivery. Besides, copy of the statutory notice were sent on the Company’s address by registered A.D. which were returned unserved. 3. The fact remains that Petitioners forwarded copy of the statutory notice on the registered address of the Respondent Company which was duly delivered. That is sufficient statutory compliance of service. The fact that such service has been effected on the Respondent Company has not been disputed by the Respondent Company. The Petitioners in support of his claim of deposit produced original receipts referred to above at the time of hearing of this Petition. The fact that statutory notice has been duly served is not in dispute. No reply was sent to the statutory notice. As a consequence whereof, Petitioners have filed the present Petition for winding up of the Respondent Company. : 4 : 4. Even at the time of admission, the Respondent Company did not bother to appear, for which reason, the matter proceeded ex-parte and the Petition was admitted. The Respondent in the reply filed subsequently has blamed the Advocate who was entrusted with the matter to appear at the time of admission. That does not take the matter any further for the Respondent. The crucial fact as to whether two deposits have been made by the Petitioners has been disputed by the Respondents. However, the Petitioner has produced original receipts as indicated earlier. It is not the Respondent’s case that the signatures appearing on the said original receipts are forged or fabricated. No such stand is taken before this Court. The only defence of the Respondent canvassed at the time of hearing is that the Petitioners have sent similar notice in November 1994. In response to which the Respondent Company had disputed its liability to pay the amount by sending written reply on 9th February 1995. If that fact is taken into account, the claim of the Petitioners which is asserted by way of statutory notice sent on 14th February 1998 and by way of present Petition filed on 15th September 2008, : 5 : would be barred by limitation. The Respondent along with reply affidavit has produced copy of the said communication sent by the Respondent dated 9th February 1995 as Exhibit ‘D’. However, in the reply affidavit filed by the Respondent, it is nowhere asserted that the said copy was duly served on the Petitioners at any point of time. No acknowledgement of service of the said communication dated 9th February 1995 has been produced on record. The Petitioners wanted to tender Rejoinder affidavit across the bar denying the fact that such reply was received by the Petitioners at any point of time. However, the Petitioners were allowed to proceed with the hearing of the Petition on denial of the claim in the reply affidavit. 5. In my opinion, the Respondent has failed to establish the fact that communication dated 9th February 1995 was in fact sent to the Petitioners at any point of time. The Petitioners are disputing the contents of the said communication including the fact that the Petitioners had sent any communication in November 1994 as stated therein. : 6 : 6. As aforesaid, this communication cannot be taken into account as the Respondent has failed to produce any material to establish the fact that the same was duly delivered to the Petitioners. In fact, the communication mentions that the same was sent by Registered A.D. However, no such receipt or acknowledgement has been produced by the Respondent. The said communication Exhibit ‘D’ obviously is an afterthought. If that communication is to be ignored, it necessarily follows that the Respondent Company is liable to pay the amount as the demand was made by the Petitioners only on 14th February 1998 and the present Petition has been filed on 15th September 1998 which will be well within limitation. Inspite of statutory notice, since the Respondent Company failed and neglected to pay the amount and has taken defence that the claim is barred by limitation, which defence has been rejected as found to be bogus, the logical order that requires to be passed is that the Respondent Company will have to be ordered to be wound up as it is unable to pay its debt. However, by way of indulgence, I propose to pass conditional order in the following : 7 : terms: (A) The Respondent shall deposit sum of Rs.5,30,000/- (Rupees Five Lakhs Thirty Thousand) in this Court within six weeks from today, failing which, the Petition be deemed to have been allowed and order of winding up passed against Respondent Company. The abovesaid amount of Rs.5,30,000/- (Rupees Five Lakhs Thirty Thousand) has been computed on the basis of Rs.2,00,000/- (Rupees Two Lakhs) principal sum and interest accrued thereon in the sum of Rs.1,80,000/- (Rupees One Lakhs Eighty Thousand) and Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) on the respective deposits, although the claim is for 18% p.a. and 15% p.a. in respect of respective deposits. (B) The Official Liquidator, for the time being, shall take symbolic possession of assets and properties of the Company. On : 8 : expiry of six weeks, on failure of the Petitioners to deposit the amount as aforesaid in this Court, the Official Liquidator may proceed to take physical possession of the assets and properties of the Respondent Company and proceed against them in accordance with law. (C) In the event, the Petitioners deposit the amount within specified time, the Official Liquidator shall stand discharged and the Petitioners would be entitled to withdraw the said amount forthwith. A.M.KHANWILKAR, J.