1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.1021 OF 2009 Rajendra S. Bane ....Petitioner V/s. UBC Bearing Indian Pvt. Ltd. ....Respondent Ms.Lata Desai with Mr.Chirag Shah i/b Singanporia & Dalvi for the Petitioner. None for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 9TH JUNE, 2010. P.C. :- 1. This is a Petition for winding up of the Respondent Company on the ground that it is unable to pay its debts. According to the Petitioner, the company is indebted to it in the sum of Rs.12,40,000/- towards the amount payable under and in terms of a contract of employment. 2. The contract is contained in a letter dated 30.8.2007 “Exhibit A to the Petition”. In paragraph 4 of the Petition, it is expressly stated that one of the terms of the contract pertains to an incentive at 1% of the total sales. This clause is not contained in the body of the letter dated 30.8.2007. It is contended that this is stated in one of the annexures thereto titled “synopsis of the contract”. In the absence of any affidavit in reply, I am not inclined to accept the statement. 3. The Petitioner has furnished the details of the sales. By an e- 2 mail message dated 12.3.2009, the company stated that the balance from that year’s incentive totaling at 7.50 shall be paid by the end of the month and for the next month, the company would consolidate the same on a monthly basis, as discussed. A further e-mail message dated 23.3.2009 states that the Petitioner would have to wait till the end of April. By yet another e-mail message dated 17.4.2009, the company states “ these figures are more or less final where total actual sale is <7.00.” The above e-mail messages do not specify the figures. It is difficult to ascertain whether the figures represent the amount in thousands, lacs or crores. 4. However, by a statutory notice dated 29.6.2009, the Petitioner inter-alia alleged that an amount of Rs.12,40,000/- was computed towards the said incentive on the total sales. The company by its reply dated 11.7.2009 raised various allegations against the Petitioner. It is also alleged that the company has filed a suit for damages in the sum of Rs. 20,00,000/-. The computation of the claim by the Petitioner however, is not denied. An e-mail message dated 12.5.2009 between the officers/executive of the company inter-se makes curious reading. In the circumstances, the Petitioner’s claim of Rs.12,40,000/- has not been challenged even in the correspondence. The allegations raised in the reply to the statutory notice have not been proved by affidavit. The company is absent, despite notice. The company has in fact been served twice. 5. However, with a view to giving an opportunity to the company of paying the amounts, the following order is passed :- 3 i). In the event of the company paying an amount of Rs. 12,40,000/- on or before 31.7.2010, the Company Petition shall stand dismissed. ii). In case of failure on the part of the Company to pay 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.