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 PETITION NO.699 OF 1999 Vasai Janata Sahakari Bank Ltd. ..Petitioner. V/s. M/s.Crystal Exim Ltd. ..Respondent. Mr.S.A.Ghaisas for petitioner. 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. Heard Counsel for the Petitioner. None appears for the Respondent though served. 2. According to the Petitioner, the Respondent requested Petitioner Bank to open L.C. to facilitate import of computer software/hardware from Mitsubishi Chemical Media Company Ltd.. It is stated that as the Petitioner Bank was not in a position to extend that facility to the Respondent, the Petitioner caused to issue L.C., as requested by the Respondent through the Saraswat Co-op. Bank Ltd. in the sum of US$ 76340/- i.e. approximately Rs.27,50,000/-. The fact that such facility was availed by the Respondent is not in dispute. It will be useful to refer to another communication sent by the Accountant of the 2 Respondent addressed to the Petitioner confirming its liability to pay total amount of Rs.19,34,252/- towards full and final settlement of all the claims of the Petitioner. Inspite of the repeated assurance given by the Respondent, as no amount was paid by the Respondent, the Petitioner eventually sent statutory notice on 14th January, 1999 on the registered address of the Respondent. The postal endorsement indicates that attempt to serve the said notice on the notified address was made repeatedly on 16,17,18,19, 20 and 21st January, 1999, but the same could not be served as the addressee was not found on the said address. The postal authority has issued certificate revealing the position that the Registered letter sent by the Petitioner addressed to the Respondent was returned with remark "not known". The Petitioner has approached this Court on the assertion that the Respondent must have avoided to accept the Notice and as filed present Petition praying for winding up of the Respondent Company. 3. There is no dispute that before admission of this Petition, the Respondent was duly served. The Respondent, in fact, filed reply opposing this Petition. Essentially two contentions have been raised on behalf of the Respondent. The first is 3 that the statutory notice has not been duly served on the registered address of the Respondent. Secondly, that the commitment made by the Director of the Company was in his personal capacity and would not bind the Respondent company of having acknowledged its liability. 4. As aforesaid, none appears for the Respondent. Accordingly, with the assistance of the Counsel appearing for the Petitioner, I shall proceed to dispose of this Petition, while adverting to the two contentions raised on behalf of the Respondent. 5. The first contention that the statutory notice was not duly served on the registered address of the Respondent is concerned, there is no difficulty in accepting the claim of the Petitioner that the Petitioner had sent such statutory notice on the registered address of the Respondent. The fact that such notice was forwarded by the Petitioner is established from the postal endorsement as well as certificate given in that behalf by the Computerised Customer Care Centre dated 12th May, 1999 Exh.U to the Petition. The postal endorsement as well as this certificate clearly reveals that after the notice was dispatched the local post office made attempt to 4 serve the Respondent on the notified address but the addressee was not found on the said address. The fact that the address of the Respondent is the same registered address is established from the certificate issued by the Search Report made available to the Petitioner by the Registrar of Company at page 65. The registered office address of the Respondent company is notified as opposite Rashmitiles, Vapi Daman Road, Dabhel-Daman. It is also not in dispute that at the same address service of the present Petition is effected on the Respondent before considering the Petition for admission, which was duly accepted. From the circumstances on record, I am inclined to accept the stand of the Petitioner that the Respondent must have avoided to accept the service of the statutory notice so as to create ground to defeat the claim of the Petitioner. There can be no other reason why the postal authority was not in a position to serve the statutory notice on the same address which is the registered office address of the Respondent company. Accordingly, I have no hesitation i concluding that the defence of the Respondent in this behalf is not bonafide. 6. In so far as the stand taken on behalf of the Respondent that commitment made by the Director was 5 in his personal capacity and cannot bind the Respondent again deserves to be stated to be rejected. It is too late in the day for the Respondent to contend that the series of the documents issued by the Respondent through its officers, who were duly authorised to issue such communication clearly indicates that the Respondent availed of the facility through the Petitioner and the Respondent was therefore, liable to repay the amount to the Petitioner. 7. Inspite of the statutory notice, the Respondent has failed and neglected to pay the outstanding dues. It necessarily follows that the Respondent is unable to pay its debt. The Respondent was liable to pay the amount of Rs.19,34,252/-, as conceded in the communication dated August 8, 1998 and further interest accrued thereon, which amount is far exceeding the statutory amount of Rs.500/-, this Court will have no option, but to allow this Petition in terms of the prayer clauses (a). Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)