Lsp IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.721 of 2008 Ryal Logistics Pvt. Ltd. ..Petitioner V/s. Pegasus Healthcare Ltd. ..Respondents Mr.H.M.Thakore a/w.Ms.Jyoti Ghag i/b.Thakore Jariwalla & Assoc. for the petitioner. Mr.Sandeep Bhagwat for the respondents. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : OCTOBER 17, 2008. : OCTOBER 17, 2008. : OCTOBER 17, 2008. P.C. P.C. P.C. : : : . Heard Counsel for the parties. Perused pleadings and documents on record. From the material on record, it is more than clear that the respondent has not made payment of Ryal Logistics Pvt.Ltd. for the services extended by the petitioner for transporting goods. The goods were transported to the desired destination by Aeroflot Russian Airlines on different dates. The petitioner submitted invoices for the said services rendered by the petitioners. It is noticed that the respondent in acknowledgment of their liability to pay the amount to the petitioner also issued cheque dated 20-9-2006 in the sum of Rs. 3 lacs. However, the hard copy of the cheque was not forwarded to the petitioner. What was sent to the petitioner was only copy of the cheque on fax. The Respondent asserts that the said cheque was sent to show bonafide that the respondent 2 would discharge their liability. However, respondent issued stop payment instructions in respect of said cheque. The principal defence of the respondents is that time was essence of delivery of the goods. However, the goods were delivered almost after gap of over 18 days to 29 days. Besides the goods were despatched in four different lots instead of one lot. The case of the petitioner is that goods were despatched in four lots for the sake of convenience and because limited service was available to the destination to which the goods were to be despatched. Although the defendants have asserted that the goods were perishable, no attempt has been made to establish that position. The goods made over to the petitioner contained medicines. No details have been furnished by the respondents as to which of the medicines were delivered after the expiry date. 2. Taking over all view of the matter, in my opinion, the defence of the respondents is not a bonafide plea. Significantly, the respondent has proceeded against the airlines for improper service by filing proceedings before the Consumer Forum. In the said proceedings, the petitioner has not been arrainged as respondent. On the other hand, the assertion in the said petition is that the respondent had directly handed over goods to the said airlines. 3 If that stand of the respondent is taken into account, it necessarily follows that the petitioner cannot be blamed for the delay in transport by the said airlines. Taking any view of the matter, as aforesaid, the defence of the respondents is not bonafide. Inspite of statutory notice, the respondent has failed and neglected to pay the amount. In my opinion, instead of straightway admitting the company petition, it is appropriate that an opportunity is given to the respondents to pay the outstanding dues of the petitioner by depositing the said amount in this Court within six weeks from today failing which the company petition to stand admitted without further reference to the Court. If amount is deposited in this Court, the same can be withdrawn by the petitioner on giving undertaking that the same will be subject to outcome of any proceedings to be adopted by the respondents against the petitioner. If the amount is not deposited in time, petitioner shall take steps to issue publication in two local newspapers, namely, "Free Press Journal", "Navshakti" and in the Maharashtra Government Gazette. The Petitioner shall deposit an amount of Rs. 10,000/- with the Prothonotary and Senior Master towards the publication charges, within three weeks thereafter with intimation to the Company Registrar failing 4 which the Petition shall stand dismissed for non-prosecution. 3. Needless to observe that observations made in this order shall not affect the proceedings filed by the respondents against Aerocraft Russian Airlines pending before the Consumer Court. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)