IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Company Petition No. 484 of 2007 M/s. Parshwa Traders : Petitioner v/s Eagle Agro Farms (P) Ltd. : Company respondents Mr. A.M. Kulkarni advocate for petitioner Mr. J. Mitra i/b Halai & co.for respondents CORAM: CORAM: CORAM: S.C.DHARMADHIKARI J. S.C.DHARMADHIKARI J. S.C.DHARMADHIKARI J. 5th 5th 5th June, June, June, 2008 2008 2008 P.C. 1. This is the company petition for winding up. 2. The jurisdiction of this court u/s 433 and 434 of the Companies Act 1956 is invoked to wind up Eagle Agro Farm (P) ltd.referred to as company in short. 3. The petitioner is the trader and has claimed that he was carrying on business in the state Karnataka. Certain goods were ordered by the company. The orders were confirmed and accordingly goods were delivered by the petitioner to the company. In respect of these supplies invoices were raised and ultimately a statement of account were forwarded. The extract of the confirmation of accounts dt. -2- 1.4.2004 has been annexed as annexure B to the petition. The closing balance is shown therein. At the foot of this account the company confirms the balance as per its record to the extent of Rs. 8,06,651/-. Since after confirmation also the amount was not paid the petitioner addressed letters through its advocate. There are reminders and finally there is a statutory notice dt. 2.1.2007. Since there is no compliance with the statutory notice this petition is filed. 4. Mr. Kulkarni submits that in the light of the balance confirmation by the company the presumption in law arises and therefore a case is made out for admission of this company petition. He submits that the reply is filed only to delay the proceedings. There is no defense much less a bonafide defense to the claim. The claim is not disputed at all. 5. Mr. Mitra appearing on behalf of the respondent raised two contentions. his first submission is that the company petition is not maintainable because there is no statutory -3- notice served on the respondent prior to the winding up petition is filed. He submits that requirement in that behalf of mandatory. If there is service at the registered office of the company, then, the petition is not maintainable. He relies upon the decision of this court reported in Company Cases Vol 76 page 244. 6. The 2nd contention is that the company petition is nothing but a suit for recovery of the sums. He drawn my attention to the statement of claim at Ex. A and submits that the petitioner is claiming compensation and damages so also penal interest. All this cannot be granted in the limited jurisdiction of this court. 7. As far as first contention is concerned from perusal of affidavit in reply filed I found that no defense is taken that a statutory notice has not been served in terms of section 433 and 434 of Act. That apart, the company i.e. to be wound up is Eagle Agro Farms (P) ltd.That company has its registered office at Eagle Estate, Talegaon, Tal. Maval, District Pune. -4- The notices by RPAD /UPC are delivered at this very address. The notice styled as statutory notice dt. 2.1.2007 has also been delivered at the registered address. When the notice was sent/delivered the endorsement on the packet is that "the company is closed".Watchman has therefore not accepted the packet. This is not a case where the statutory notice is not delivered at the registered office at all. Thus, apart from the plea not being raised in the affidavit in reply but orally for the first time, conditionally, I found no substance in the contentions of Shri Mitra to this effect. The judgment of this court is cited before me is distinguishable on facts. There, the arguments was that the petitioner sent notice by registered post to the registered office but it was returned not delivered -not served. Thereafter, another notice was sent to the company but this time it was not at the registered office. It is in these peculiar facts that the court concluded that there is no notice under the statute delivered at the registered office. Such is not the case before me. The notice is delivered at the registered -5- office. It is not the case of the respondent company that it does not carry on business at Eagle Estate or that the same is not its registered office. The dispute is with regard to delivery. However, from the endorsement on the original packet I am satisfied that the notice is delivered at the registered office. 8. As far as the merits are concerned in the entire affidavit there is no dispute raised with regard to the liability. At least, in so far as principal amount is concerned the affidavit in reply is silent. There are denial with regard to the claim of compensation and interest but in the face of the balance confirmation and that the confirmation is by the company itself through its authorised signatory, there is no dispute or denial. Therefore, at least to the extent of the principal sum there is an admission of the liability. That amount having not been paid the petition would have been filed and is thus maintainable. 9. After all this was brought to the notice of Shri Mitra. He makes statement on instructions -6- that inspite of company petition being admitted by this court an opportunity to be given to the respondent to show its bonafides and it will deposit the principle sum of Rs. 8,09,992/- in this court within 12 weeks from today. 10. After hearing both the sides in the light of the statement made by Mr. Mitra on instructions, in my view the conditional order can be passed in the following terms. ORDER . (a)Upon the respondent deposit in this court a sum of Rs. 8,10,000/- within 12 weeks from today liberty is granted to the petitioner to file a suit for the balance claim and the amount should be transferred to the credit of the said suit if deposited. . Mr. Kulkarni appearing for the petitioner states that the petitioner would take steps to file a suit immediately after compliance is made by the company with the above statement. -7- . (b) Needless to state that if the amount is not deposited as stated above this company petition to stand admitted and thereafter advertisement in accordance with law. The petitioner’s advocate is at liberty then to pay the advertisement charges. . (c) All contentions in so far as merits of the case are concerned in the suit are kept open and it would be permissible for both sides to raise such pleas as available in law with regard to the claim of the petitioner. If the amount is deposited would amount transfer, petitioner is at liberty to apply for withdrawal of the principle sum deposited with approved interest and such application should be considered by the trial court in accordance with the law. (S.C. DHARMADHIKARI,J)