2006 (12) TMI 236

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..... 3,99,419 during the year 2001. Payments totalling to Rs. 7,11,319.90 have been received by the petitioner between May, 2001, and February, 2004. According to the petitioner, a sum of Rs. 3,86,045.41 remains due and owing from the company on account of principal. 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 petition 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 comp....

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....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. The company's affidavit has been affirmed by one, Kirti 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 lis....

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.... in excess of the value of the goods supplied during the relevant period. Ordinarily, there would be a presumption on the basis of such payment that past dues of the company were being liquidated. This presumption could have been rebutted by the company by relying on other transactions to substantiate the company's charge that the list relied upon by the petitioner was not genuine and that the additional payments made during the relevant period were on account of other supplies effected or other transactions involving the two parties. A second decision was relied upon on behalf of the company reported at [1980] 2 SCC 760 (sic). The judgment of the learned Single Judge of the Madras High Court proceeded on the basis that in addition to th....