- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.36 OF 2005 IN COMPANY PETITION NO.1217 OF 2000 ... Deepak Machineries Pvt.Ltd. ...Appellant v/s. Ispat Industries Ltd. ...Respondent ... Mr.V.V.Kanade i/b M/s Mansukhlal Hiralal & Co. for the Appellant. Mr.T.N.Tripathi i/b T.N.Tripathi & Co. for the Respondent. ... CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 25TH MARCH,2009 - 2 - P.C.: 1. By this Appeal the Appellant takes exception to the order dated 28th October, 2004 passed by the learned single Judge of this court in Company Petition No.1217 of 2000. That Company Petition was filed by the Respondent Ispat Industries Ltd. seeking an order for winding up of the Appellant-company because of its inability to pay the debts. According to Respondent, despite issuing three statutory notices the Appellant did not pay the amount that was due to the Respondent-company and therefore, it was unable to pay its debts and therefore is liable to be wound up. 2. The petition was opposed by the Appellant-company. There were three defences raised. First defence was that the statutory notice was not served at the registered office of the company. Secondly, it was contended that even assuming that the first statutory notice dated 14th October, 1991 was served at the registered office of the company, because of issuance of subsequent notice dated 8th - 3 - March, 2000, a petition based on the first statutory notice dated 14th October, 1999 could not have been filed. Thirdly, the petition cannot be entertained by the court because there is discrepancy in the amount claimed in the statutory notices and the amount actually demanded. 3. The learned single Judge negatived all the defences and made a conditional order directing the company to deposit Rs.1,00,00,000/-, failure of the Appellant-company to deposit the amount was to result in admission of the petition. 4. The learned counsel appearing for the Appellant reiterated the three defences which were raised before the learned single Judge. The learned Counsel submitted that the registered office of the company is at Mahalaxmi, Mumbai. Notice dated 14th October, 1999 was addressed at Mahalaxmi office, however, it came back to the sender with an endorsement ‘unclaimed’. According to the learned counsel when the statutory notice sent at the registered address came back with an endorsement ‘unclaimed’, it is not a good service, and therefore, according to the learned Counsel, the company petition has been filed - 4 - without effecting service of the statutory notice. He relies on the judgment of the Panjab and Haryana High Court in the case of Nuchem Ltd. v/s. C.S.Modi and Co.Pvt.Ltd., 2002 Company Cases, page 715. He further submits that the learned single Judge has committed an error in holding that the defence raised by the Petitioner/Appellant was not bonafide in relation to the claim of the Respondent-company. 5. We have heard the learned Counsel appearing for the Respondent and we have gone through the record. Now so far as the service of the statutory notice is concerned, we can for the purpose of disposing of this appeal assume that the registered office of the company is at Mahalaxmi. Admittedly, notice dated 14th October, 1999 demanding an amount of Rs.1,87,00,000/- was sent to the Mahalaxmi office of the Appellant-company. It came back with an endorsement ‘unclaimed’. The learned single Judge has relied on a judgment of a learned single Judge of this court to hold that when a notice is sent by registered post A.D. and it comes back with an endorsement of the postal authority that it was not claimed by the addressee, then it is a good service. In our opinion, the view taken by the learned single - 5 - Judge of this court relying on the judgment of Supreme Court in the case of Jagdish Singh B. Natthu Singh, (1992) 1 SCC 647 is a correct view. When a notice is sent under registered post acknowledgement due and it comes back with an endorsement made by the postal authority ‘unclaimed’, in view of the provisions of Section 114 of the Evidence Act it being a work done in regular course of business. Presumption arises that when the postman took the packet to the registered office and he found that the office is closed and he pasted a notice intimating the company that the registered packet addressed to the company is received and therefore the company should claim that packet within stipulated time and because the company did not claim the packet within a stipulated time, it was sent back to the sender. If this is the presumption to be drawn, then it has to be held that when the packet comes back with an endorsement ‘unclaimed’ it amounts to valid and good service. Therefore, there is no substance in the submission of the learned counsel for the Appellant that the service of the statutory notice at Mahalaxmi office is not good service. Therefore, it has to be held that the company petition was filed after duly serving a statutory notice at the Mahalaxmi office of - 6 - the Appellant-company. Even according to Appellant, the company’s registered office is at Mahalaxmi. 6. So far as second defence is concerned, assuming that the Appellant-company is right in contending that its registered office is at Mahalaxmi, the subsequent two notices dated 8th March, 2000 and 21st July, 2000 were admittedly not addressed at Mahalaxmi office, therefore is no question of first notice getting merged with two subsequent notices, since those notices are not statutory notices as they were not addressed at the registered office. Therefore, if we assumed that the petition is based on the statutory notice dated 14th October, 1999,where the amount claimed is Rs.1,87,00,000/-,and in the petition lesser amount was claimed because of payment made subsequent to that notice by the Appellant-company. In the petition certainly lesser amount than the one claimed in the statutory notice can be claimed after giving explanation for the same. In our opinion, no fault can be found with the learned single Judge for rejecting this submission. 7. So far as bonafides of the defences raised by the Petitioner is concerned, in our opinion, the learned - 7 - single Judge rightly held that the defences raised by the company is not bonafide. The principal defence of the company was that the amount is claimed by the Respondent company is not payable, particularly, because of outstanding credits notes. When that defence was raised in reply to the statutory notice, by notice dated 8-3-2000, the Respondent-company clearly pointed out that if that is the defence then the Appellant may withhold the amount of Rs.10,90,485/- on that count. In response to this reply, letter dated 7th April, 2000 was addressed. By that letter a cheque of part payment was sent and it was stated "We shall release post-dated cheques for the balance amount as soon as the old credit notes and other matters are settled between us. The Appellant did not dispute that the amount on account of dispute is only Rs.10,19,485/-. In this background, therefore, in our opinion, the learned single Judge was perfectly justified in holding that the defence was not bonafide. It appears that, thereafter, the Respondent-company agreed that the Appellant may withhold the amount of Rs.15,00,000/- towards credit notes. But this suggestion was not accepted by the Appellant-company by merely saying that the amount of Rs.15,00,000/- is too low. But at - 8 - no point of time exact amount which according to the Appellant has to be withheld on account of credit notes is specified, though, it is nobody’s case that the Appellant did not know what is the exact amount liable to be withheld on this account. The learned single Judge, in our opinion, has rightly held that the amount due on account of credit notes is merely a defence raised to avoid liability to pay and there are no bonafides. 8. At the conclusion of the hearing of the Appeal we put it to the learned Counsel appearing for the Appellant that even if now the Appellant is willing to deposit the amount which is directed to be deposited by the learned single Judge, we may extend the time for doing so. The learned Counsel, after taking instructions, informed us that the Appellant is not in a position to deposit the amount. In our opinion, really speaking an admitted minutes dated 23rd July, 1999 which have been reproduced by the learned single Judge in paragraph 2 of his order clearly shows that the Appellant company was in financial difficulty and its inability even now to deposit the amount shows that it is not able to pay its debts. We do not find any reason to take a - 9 - different view than the one taken by the learned single Judge. Appeal, therefore, fails and is dismissed. No order as to costs. 9. The publication of notice of admission of the petition was stayed during the pendency of the Appeal, therefore, now the company registrar shall fix a returnable date for publication of the notice. 10. At the request of the learned Counsel for the Appellant, it is directed that the notice of admission of the petition shall be published only after a period of eight weeks from today. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)