*1* cp.968.09.deposit.sxw kps I N THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.968 OF 2009 Rajiva Exports. ..Petitioner -Versus- M/s Silver Ispat Pvt.Ltd.. ..Respondent .......... Mr.Vaishnawa i/b M/s Bharat Vaishnawa & Company for the Petitioner. Mr.Subhash Jha a/w Mr.S.M.Kamtam i/b Law Global for the Respondent. .......... CORAM : S.J. VAZIFDAR, J. DATE : 11th August, 2010. P.C. 1 This is a petition for winding up the Respondent/ Company on the ground that it is unable to pay it’s debts. 2 The Petitioner admittedly supplied the material to the Respondent on the terms and conditions contained in 17 invoices between the period 21.01.2009 to 26.03.2009. 3 The only defence is that the material was not of the requisite quality. The Respondent further alleged that having rejected the goods, it offered to return the same to the Petitioner. 4 The Respondent issued five cheques aggregating to a sum of Rs.26.15 lacs dated 06.05.2009, 07.05.2009 and 08.05.2009. These cheques were issued after the material was supplied. Prima- facie, therefore, the allegation regarding the inferior quality of the *2* cp.968.09.deposit.sxw goods cannot be accepted. 5 Added to this is the fact that the Respondent replaced these cheques with five cheques aggregating to a sum of Rs. 25,29,755 dated 11.05.2009, 12.05.2009 and 13.05.2009. If indeed the goods were not of the requisite quality, the Respondent would not have issued these fresh cheques. It would have in the normal course protested about the quality and never have issued fresh cheques. Apart from the bare averments in the affidavit-in-reply, there is nothing on record which explains this conduct. 6 Faced with this it was stated that the fresh cheques were actually issued along with the original cheques. The cheques were dishonoured when presented for payment. 7 There is no cogent reason why two sets of postdated cheques should have been issued at the beginning. It is not suggested and it would indeed have been a rather curious suggestion that the second set of postdated cheques was issued on the presumption that the first set of cheques may be dishonoured. The memos of dishonour are dated 25.05.2009, 26.05.2009 and 27.05.2009. The dispute regarding the quality of the goods was raised at the earliest on 14.05.2009. I am not inclined to accept the contention that all the cheques including the fresh set of cheques was issued before the goods were supplied. 8 The defence, therefore, does not appear to be bona-fide. 9 In the circumstances, the following order is passed:- (i) The Respondent/ Company is directed to deposit in this Court a sum of Rs.25,00,000/- on or before 31st October, *3* cp.968.09.deposit.sxw 2010. (ii) Upon the amount being deposited as aforesaid, the same shall be invested in a nationalized bank initially for a period of one year and thereafter, for like periods of one year each and the Petition shall stand disposed of. (iii) In the event of the amount being so deposited and in the event of the Petitioner filing a suit within twelve weeks from the date of the Petitioner’s Advocate being informed of such deposit in writing, the amount shall stand transferred to the credit of that suit. The Petitioner shall be at liberty to make an application in the suit for withdrawal of the amount. (iv) In the event of the suit not being filed as aforesaid, the petition shall stand dismissed and the amount with interest thereon shall be refunded to the Respondent- Company. (v) In case of failure on the part of the Company to deposit the amount as aforesaid, the Petition shall stand admitted and to be advertised in Free Press Journal, Maharashtra Times and Maharashtra Government Gazette. The Petitioner to deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master of this Court within four weeks from the date of default. 10 Mr.Subhash Jha waives service on behalf of the Respondent. -