ASHIM KUMAR BANERJEE, J.

( 1 ) THE petitioner was carrying on business under the name and style "o. Sing and Company". At the relevant time the petitioner supplied chemical and organic fertilizer, pesticides, etc. , to the company. On account of supply there had been an outstanding of Rs. 11,61,794. 16 as on December 31, 2000. The company made a part payment of Rs. 2 lakhs on January 12, 2001, thereby leaving a sum of Rs. 9,61,794. 16 which was confirmed by the company on February 23, 2001. After such balance confirmation the company during the period March, 2001, to April, 2001, made diverse part payments aggregating to Rs. 2. 32 lakhs leaving a balance sum of Rs. 7,29,794. 16. The petitioner caused a statutory notice of demand served at the former registered office of the company and thereafter initiated the above winding up proceeding.

( 2 ) IN the affidavit-in-opposition the company contended that since the notice was not served at the registered office of the company the winding up petition was not maintainable and was liable to be dismissed.

( 3 ) ON the merits, it was contended in the affidavit that the management of the said company had changed hands on April 30, 2001. The present management had no records to verify the claim of the petitioner. The balance confirmation being relied upon by the petitioner as well as the part payments made by the company would show that everything happened when the company was being controlled by the erstwhile management. At the time of taking over the erstwhile management did not inform the present management about the claim of the petitioner. It was also contended that no documents barring the balance confirmation, in support of such claim had been produced by the petitioner. Hence, the winding up petition was not maintainable.

( 4 ) MR. Ratnanka Banerjee, learned Counsel for the petitioner, contended that service of statutory notice of demand was effected at the recorded address of the registered office of the company as he had no knowledge of change of the registered office. Mr. Banerjee further submitted that even if the notice was not served at the registered office the petitioner being a creditor of the said company was entitled to maintain this winding up petition. Mr. Banerjee further submitted that the claim of the petitioner stood admitted in view of the balance confirmation as well as in view of a letter written by the present management to the erstwhile management demanding recovery of the present claim. In the said letter of the present management a certificate of the auditor had also been enclosed for ready reference which would prove the existence of the petitioner's claim. Mr. Banerjee submitted that since the admitted claims were not paid by the company it would be deemed that the company was insolvent and was unable to pay its debts and as such the petitioner was entitled to have an order of admission.

( 5 ) IN support of his contention Mr. Banerjee relied on the following decisions : (1) Pandam Tea Co. Ltd. v. Darjeeling Commercial Co. Ltd. [1977] 47 Comp Cas 15 (Cal) ; (2) Manganese Ore (India) Ltd. v. Sandur Manganese and Iron Ores Ltd. [1999] 98 Comp Cas 755 (Karn) ; (3) Ramdas and Co. v. Kitti Steels Ltd. [2001] 103 Comp Cas 199 (AP); (4) [2000] WBLR 256 (Cal) ; (5) Unreported Division Bench decision of this Court in the case of Jupiter Rubber Pvt. Ltd. v. S. K. Trading Company (A. C. O. No. 85 of 2000 ).

( 6 ) RELYING on the aforesaid decisions Mr. Banerjee submitted that the winding up petition should be admitted and direction for advertisement should be given.

( 7 ) MR. Dhruba Ghosh, learned Counsel appearing for the company, contended that since the statutory notice of demand was not delivered at the registered office of the company, the petitioner was not entitled to have the rebuttable presumption under Section 434 of the Companies Act, 1956. Since rebuttable presumption was not available to the petitioner the petitioner was not entitled to have an or

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