The main legal point established in the judgment is that a petition for winding up would not be rendered invalid only because of a discrepancy between the amount claimed in the notice and the amount claimed in the petition, and that a notice returned as unclaimed is presumed to have been served.

JUDGMENT - VAZIFDAR S.J., J.: - The petitioner has filed this petition for the winding up by the Court of the company Deepak Machineries Pvt. Ltd. under the provisions of the Companies Act, 1956 on the ground that the company is unable to pay its debts.

2. The petitioner's claim arises in respect of C.R.C.A. sheets sold and delivered by it to the company. The amount due in respect of the said transactions and the mode of payment thereof was settled in terms of a writing dated 23rd April, 1999. It would be convenient to set out all six clauses, which read as under :-

"1. The total outstanding as on date is Rs. 1.5 crores (Approximately).

2. Mr. Saraf appraised us of the scenario today and informed that during the month of April, he will release payment between Rs. 25 to Rs. 40 lacs.

3. Mr. Saraf also indicated that things will improve from May, 1999 onwards and outstanding position will improve.

4. Mr. Saraf further indicated that he will make all efforts to clear all outstandings before we resume business.

5. The Credit Notes on account of (1) Rate Difference, (2) Quality and Grace Difference (3) Material returns and any other pending issues are to be settled in three weeks.

6. Ispat informed that the relationship between the two companies should move ahead after release of substantial amount of payment."

3. Thereafter by a letter dated 23rd May, 1999, the company informed the petitioner that it was unable to clear the outstandings due to their auditors objection on account of the petitioner not having issued the credit notes. By a letter dated 24th May, 1999, the petitioner stated that the credit notes would be issued only after the outstandings were cleared. This stand may or may not be justified. It is however pertinent to note that in this letter, the petitioner stated that the company could withhold an amount of Rs. 15,00,000/- in respect of the credit notes and clear the balance outstandings of Rs. 1,36,00,000/- . It is then important to note that the company did not respond stating that the sum of Rs. 15,00,000/- suggested by the petitioner to be adjusted was too low. Indeed if it was too low the obvious response of the company would have been to insist that a higher amount be adjusted in respect of the credit notes. The stand taken by the company before me is that after issuance of credit notes and adjusting amounts due to the company by way of alleged damages, an amount of only Rs. 15,00,000/- will be found due and payable to the petitioner.

4. Thereafter the petitioner between 26th May, 1999 and 21st June, 1999, called upon the company to clear the outstanding and issue debit notes in respect of interest. The first response to these letters was on 21st June, 1999 when the company stated that the issue of the credit notes ought to be finalised. Even at this stage the company did not state that the petitioner's suggestion of adjusting Rs. 15,00,000/- on an ad hoc basis was unjustified as being too low. The petitioner therefore requested a meeting to resolve the issue of credit notes. Under cover of its letter dated 9th June, 1999 the petitioner enclosed a statement of accounts as per its record and called upon the company to reconcile its account and finalise the amounts with reference to the credit notes to be issued by the petitioner. The petitioner's requests for holding a meeting in this regard remained unanswered.

5. (a) The petitioner addressed three statutory notices under section 434(1) of the Companies Act, 1956 dated 14th October, 1999, 8th March, 2000 and 21st July, 2000.

(b) The notice dated 14th October, 1999, called upon the company to pay a sum of Rs. 1,89,97,031/-. It was served at the Pune and Mahalaxmi (Mumbai) offices of the company. The company contends, and I shall presume correctly, that the office at Mahalaxmi is its registered office.

(c) The notice dated 8th March, 2000 was served at the Pune and Khar (Mumbai) offices of the company. In paragraph 6 of this notice, the petitioner stated that i

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