1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.137 OF 2008 IN COMPANY PETITION NO.661 OF 1990 WITH OFFICIAL LIQUIDATOR’S REPORT Atlantis Advertising Co. ..Petitioner. V/s. The O.L.for Haldyn Industries P.Ltd. ..Respondent. Mr.Harinder Toor a/w S.B.Pawar i/b. S.K.Legal Associates for applicant/petitioner. Mr.S.Ramakantha, Dy.O.L. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 26, 2008. DATE : MARCH 26, 2008. DATE : MARCH 26, 2008. P.C. : P.C. : P.C. : 1. In so far as the claim of the Applicant to the extent of Rs.3,48,275/-, that is in relation to the 16 cheques issued by the Company in liquidation to the Applicant, which were eventually dishonoured when presented. According to the Applicant, 16 original cheques were submitted in the office of the Official Liquidator, on which basis the predecessor of the Official Liquidator adjudicated the claim of the Applicant and accepted the claim of the Applicant. The representative of the Official Liquidator however points out that none of the 16 original cheques are found in the record of the 2 Official Liquidator. Besides, the claim arising out of the said 16 cheques will have to be treated as ordinary unsecured creditor’s claim. To that extent, the Applicant has no serious objection. The question is whether the Applicant has already established the position that the said amount was due and payable to the Applicant. Although the Applicant asserts that 16 original cheques have already been submitted in the office of the Official Liquidator, as there is no record to support this submission, the Official Liquidator will be justified in insisting for establishing the said claim afresh. Indeed, the Applicant cannot be made to produce original cheques, when the Applicant claims that the same have already been submitted in the office of the Official Liquidator. At the same time, however, as the original 16 cheques are not traceable, the Applicant can be called upon to establish the claim on the basis of other contemporaneous record. The Official Liquidator may also examine the relevant counterfoil to reassure that such cheques were issued in favour of the Applicant, as also certificate to be issued by the Bankers of the Company in liquidation that the said cheques have not been encashed at all and or were presented and dishonoured. If the Bankers of the Company in liquidation were to accept that 3 position, that can be the basis for the Official Liquidator to consider the claim of the Applicant, subject to Applicant establishing that such cheques were actually issued by the Company in liquidation. The Applicant can also establish that position by obtaining certificate from its bankers that those 16 cheques were presented for encashment, but were returned as dishonoured. It is the Applicant, who has to establish his claim in the first place. 2. Insofar as the claim of Rs.75,56,750/- is concerned, as per the record of the Official Liquidator, the Applicant must have produced the original copies of the documents, but however, placed only xerox copies thereof on record of the Official Liquidator, as can be seen from the noting dated 26th June, 2006 at page No.6 of the notice and document flagged as "A" of the correspondence file. The only other way to resolve the controversy is to require the Applicant to resubmit xerox copies of the original documents to the Official Liquidator, who in turn shall verify the authenticity and genuineness of the said documents by comparing the same with the record of the Company in Liquidation. If the record of Company in liquidation, which is possession of the Official Liquidator, supports the claim of the 4 Applicant, the Official Liquidator may be free to issue appropriate direction, as may be advised. 3. The above steps be taken by the Official Liquidator within four weeks from today. 4. This Application is disposed off with the above direction to the Official Liquidator with liberty to the Applicant to challenge the decision of the Official Liquidator, if and when occasion arises. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)