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2006 Supreme(Cal) 797
High Court Of Calcutta
Before Sanjib Banerjee, J.
DIABARI TEA COMPANY LIMITED - Appellant
Versus
KANAK LATA SAHA - Respondent
C. P. 626 Of 2004
Decided On : 12/18/2006
MANJU BHUTORIA, ROHITENDRA CHANDRA DEB
The presumption of the company's inability to pay could arise even if the statutory notice was not received at the registered office, as long as the company had notice of the demand and did not respond to the petitioner's claim.
Headnote:
WINDING UP PETITION - INSOLVENCY - SECTION 433(e) OF THE COMPANIES ACT, 1956 - Statutory notice received by company at its head office is sufficient to presume inability to pay - Winding up petition admitted.
Fact of the Case:
Petitioner, a creditor, filed a winding up petition against the company for non-payment of dues. The company received the statutory notice at its head office but claimed that it was not served at the registered office.
Finding of the Court:
The court held that the presumption of the company's inability to pay could arise even if the statutory notice was not received at the registered office, as long as the company had notice of the demand and did not respond to the petitioner's claim.
Issues: Whether the winding up petition should be admitted despite the statutory notice not being served at the registered office.
Ratio Decidendi: The main purpose of a notice is to make the noticee aware. The company was aware of the statutory notice having been issued, and there was no denial in the affidavit used by the company. Merely because the petitioner cannot demonstrate that the statutory notice was served at the registered office of the company, would not be the ground enough for rejecting a winding up petition.
Final Decision: The winding up petition was admitted for the principal sum of Rs. 3,86,045.41 p. together with interest at the rate of 10% per annum from the date of statutory notice till payment.
( 1 ) THE petitioner claims to have effected supplies to the tea garden of the company. According to the petitioner and the document being Annexure 'a' to the petition, a sum of Rs. 6,97,945. 41 p. remained unpaid to the petitioner as at the end of the year 2000. Subsequent supplies were effected by the petitioner to the tune of Rs. 3,99,419/- during the year 2001. Payments totaling to Rs. 7,11,319. 90p. have been received by the petitioner between May 2001 and february 2004. According to the petitioner, a sum of Rs. 3,86,045. 41 p. remains due and owing from the company on account of principal.
( 2 ) THE petitioner attempted to serve the statutory notice at the registered office of the company. Such notice was returned to the petitioner with the postal remark "addressee not known". Another notice was served by the petitioner at the head office of the company at 229, AJC Bose Road, calcutta - 700 020. The petitioner received the acknowledgment card evidencing receipt of such notice by the company at its head office. Such fact has not been denied in the affidavit used by the company.
( 3 ) IT has been submitted before me that the presumption of the company's inability to pay could arise only upon statutory notice being received at the registered office of the company. This, it was submitted, had to be strictly construed and any other notice received by the company or the persons in management, would not suffice.
( 4 ) SINCE it is undisputed that the company had notice of the petitioner's demand and since no reply was used by the company in response of the petitioner's claim, even to indicate that the statutory notice was not in order, I do not think that the company should be afforded the luxury of urging such ground. The main purpose of a notice is to make the noticee aware. There is no denial in the affidavit used by the company that the company was aware of the statutory notice having been issued. Merely because the petitioner cannot demonstrate that the statutory notice was served at the registered office of the company, would not be the ground enough for rejecting a winding up petition.
( 5 ) AS to the merits of the petitioner's claim, the company cited its management having changed and the demand having been incited by persons formerly in management of the company. The company also contended that the alleged claim till December 2006 was based on a forged document and that it would appear from the petitioner's averments that during the period beginning january 2001, the petitioner had received more payments that the value of the goods supplied to the company. In effect, it was suggested in the company's affidavit, that the company had made excess payment. There is no indication as to why such excess payment was required to be made by the company.
( 6 ) THE company's affidavit has been affirmed by one, Kirit Kumar M. Patel. In the affidavit in reply used by the petitioner, a document dated May 2, 2001 has been relied upon. Such document is an indemnity given by the erstwhile directors of the company in favour of the persons, who subsequently came in control of the company. Such document was executed on behalf of the new management by Kirti Kumar M. Patel. The document refers to a list of the creditors of the company as at December 31, 2000. The list appended to such document is the same list which appears at page 8 of the petition which the company claimed in its affidavit to be a forged document. The name of the petitioner appears at the top of such list. The petitioner, Kanak Lata Saha, carries on business in the name and style of 'agchem'.
( 7 ) LEARNED Counsel appearing on behalf of the company, cited (1994) 1 cal LJ 449 for the proposition that if a document was disputed, such document could not be made the basis of the winding up claim and at least, the genuineness of such document should not be allowed to be cited before the winding up Court to proceed on the basis thereof.
( 8 ) TH
