CA874-01 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.874 OF 2001 M/s.S.A.Industries .. Petitioner Versus M/s.SEC Machine Pvt.Ltd. .. Respondents Mr.V.M.Vaghela for petitioner Mr.Makarand Bakore holding for Mr.Damle for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 6th January 2011. P.C.: 1] Respondent company is private limited company. The petition filed against it has been admitted on 28th March 2002. The petition was admitted because nobody appeared for company though it was duly served. There was no affidavit in reply. The Court observed while admitting the petition that respondent company is not disputing the liability to the extent of Rs.1,37,111/-. Even the admitted sum has not been paid. CA874-01 2 2] After the petition was admitted, notice was issued and it appears that Mr.Atul Damle, Advocate entered his appearance. However, despite sufficient opportunity, the company has failed to file any reply affidavit. Mr.Damle stated that he has no instructions. It is stated that the Advocate tried to contact the company but nobody is responding. This was the position earlier as well. 3] From the record it is clear that the case of the petitioner is that the respondent company had received the orders for supply of machines as more particularly set out in para 6 of the petition. Since the petitioner desired to have the delivery of machines early, the advance amount was paid by demand draft. Subsequently, the machine was delivered and, therefore, the petitioner sought refund of the advance amount paid by demand draft. It is stated in paras 7 to 9 of the petition as to how after taking over the machine which was found to be of low grade and defective, the company failed to refund the advance amount. The demand notice was sent to which a reply CA874-01 3 was received, which is at Annexure B page 22 of the petition paper book. After raising various pleas with regard to the alleged breach of the petitioner, ultimately it is stated in the reply that a sum of Rs. 1,87,889/- was already paid and all that remained to be paid is Rs. 1,37,111/- out of Rs.3,25,000/-. However, even that amount has not been paid. This stand of the company was refuted by the petitioner by pointing out that no part of the Advance amount has ever been refunded and the assertion is false. From the record, therefore, atleast indebtedness to the extent indicated in the order passed admitting the petition is admitted. There was enough opportunity for the company to respond during the pendency of this petition. If the stand taken was indeed bonafide nothing prevented the company from depositing the amount which it found to be due and payable as per its accounts and records. But, even that course has not been adopted. The presumption, therefore, can be drawn that the stand taken is not bonafide. The petitioner has pointed out that respondent is a private limited company. It has become financially insolvent and is unable to meet the demands of persons like petitioner. It is virtually defunct. CA874-01 4 For all these reasons and when enough opportunity is given to the respondent to defend the claim of the petitioner or to secure it, there is no alternative but to allow this petition. Petition is, therefore, made absolute in terms of prayer clause (a). No costs. (S.C.DHARMADHIKARI, J)