TaxTMI 
TaxTMI 
2009 (12) TMI 512
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....ty of goods. However, the respondent-company failed and neglected to pay the dues. The fact that the goods were supplied to the respondent-company is substantiated by the invoices some of which are appended to the company petition being invoice nos. 38 to 49 as exhibit A to exhibit L. It is stated that a statement of account in respect of amount due and payable to the original petitioner was sent by him along with his letter dated September 2, 1997, mentioning the outstanding amount of Rs. 30,05,387. The respondent-company in reply neither disputed the factum of receipt of goods nor the outstanding amount. However, in the reply dated September 4, 1997, it was merely alleged that the claim of interest of the petitioner was untenable. In other words, the respondent-company merely raised a dispute regarding the claim of interest. The original petitioner by its letter dated September 11, 1997, immediately placed on record that the amount referred to in the respective invoice was payable not later than a month, failing which it would bear the interest as printed in the invoice for late payment. Since no response was received from the respondent-company, the original petitioner sent a le....
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....phic mode through post. It was a telegraphic notice sent through the advocate stating that it was a statutory notice under section 434 of the Act calling upon the respondent to pay the aforesaid outstanding amount of Rs. 10,05,385 along with interest at the rate of 30 per cent. per annum within 21 days from the receipt of notice, failing which winding up action of the respondent-company would be initiated. It is stated that the petitioner through the advocate addressed a letter dated July 18, 1998, to the Superintendent, Central Telegraphic Office mentioning that a telegraphic notice was sent to the respondent-company on the registered office of the company to furnish a certified copy of the telegram and also clarify whether the telegram has been received by the addressee or not as that information will have to be mentioned in the proposed company petition to be filed in this court against the company. In response to the said communication, the Office Incharge of Central TO, Mumbai, replied as follows : "Department of Telecommunications I beg to inform you that your attached telegram No. N163/27-6 handed in on the 27-6 addressed to M/s. Jai Prakash Strips Ltd., at 17, Dehbano....
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....o appearance was made before the court on February 28, 2007. As a result, considering the facts of the case, the company judge proceeded to allow the petition in terms of prayer clauses (a) and (b) and accordingly ordered winding up of the respondent-company as also appointed the official liquidator to proceed in accordance with law. 4. The respondent-company thereafter moved an application being Company Application No. 1074 of 2007 asserting that they were not aware about the continuation of proceedings as no communication was received by them from their advocate Mr. Navinchomal after 1999. Essentially, the blame was put on the inaction of the advocate on record to justify non-appearance on behalf of the company on February 28, 2007. Suffice it to observe that the company judge by order dated April 17, 2008, allowed the said company application on condition that the company shall deposit a sum of Rs. 5,00,000 within a period of four weeks from the date of the said order. Upon compliance of the said condition, the company petition stood restored and was proceeded further. The matter appeared for hearing on October 18, 2008. The respondent did not file a separate reply affidavit ....
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....e. In the judgment Hajrabi Abdul Gani v. Abdul Latif Azizulla reported in AIR 1996 Bom. 192, it is observed that if the addressee denies receipt of service of notice, onus is on the plaintiff to prove to the contrary by examining the postman who tendered the letter containing the notice to the defendant or by adducing some other evidence. Applying the principle stated therein, the petitioner was expected to either produce evidence of the postman or some other evidence to dispel the claim of the respondent regarding service of notice and the endorsement occurring on the envelop as 'not claimed'. 2. Counsel for the petitioner seeks time to consider this aspect and if required to file further affidavit and material in support of their claim that the statutory notice be treated as duly served on the respondent. Stand over to November 24, 2008. Further, affidavit and relevant material be filed by the petitioner on or before November 11, 2008. 3. It will be open to the respondent to file further reply to the pro posed affidavit, which will have to be filed on or before November 17, 2008." 5. The matter then appeared on December 4, 2008, when the court considered the further affi....
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....ers have not produced copy of the original communication received by the Department of the Telecommunication but are relying on the typed copy thereof. 4. In the affidavit now filed, the petitioners assert that the original copy of the said communication is lost and cannot be produced and the petitioners be permitted to rely on the typed copy as secondary evidence. This request could have been considered, however, the respondents, in the additional reply filed, have produced communication sent to the Superintendent, Central Telegraphic Office on October 20, 2008, calling upon the said office to issue a certified copy of the communication dated July 22, 1998, at exhibit U of the petition. In response to the said request, the Sub-Divisional Engineer, G-II, C.T.O., Mumbai-400 001 by his letter dated October 23, 2008, has informed the respondents that the relevant records for period dated July 22, 1998, is no more avail able since destroyed on due date, for which reason, the certified copy of the communication dated July 22, 1998, cannot be issued. Needless to mention that in the reply affidavit filed by the respondents, it is stoutly denied that any telegram or R.P.A.D. was served ....
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.... make good the fact that such registers are maintained and required to be preserved from 1998. It is only then the court may think it appropriate to issue summons to the officials of the concerned post office. The applicants may do so on or before January 15, 2009. 3. Place this matter on January 16, 2009. 4. At this stage, counsel for the applicants invited my attention to the observation in paragraph 5 of my earlier order dated December 4, 2008, passed in Company Petition No. 706 of 1998 to contend that the court was conscious when it observed that it will be open to the applicants to take appropriate steps and the present application is in deference to the said observations. The argument clearly overlooks the reason recorded in the earlier part of the same order that unless there is something on record to indicate that registers regarding movement of record are maintained and available in the office, it is not possible to straightaway issue summons to the officials of the post office." 7. On January 16, 2009, the petitioners requested the court to issue letter of request for the same directions as noticed in the judges summons. The court vide order dated January 19, 200....
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....y, 1998 only after receipt of the statutory notice dated October 25, 1997, which was not only sent by registered post with acknowledgment due but also under postal certificate. The said payment was only part payment of the outstanding dues. However, since the respondent-company failed to pay the balance outstanding dues, statutory notice was sent on March 6, 1998, by speed post acknowledgment due and later on registered post with acknowledgment due, but both the notices were returned with postal remarks "intimation" and "intimation not claimed" respectively. According to the petitioners, legal presumption of service of the said notices on the respondent is attracted. Nevertheless, the respondent-company failed and neglected to pay the balance amount demanded in the said notice, in the sum of Rs. 10,05,385. The petitioners in any case sent another statutory notice by telegram on June 26, 1998. As per the communication issued by the authorised officer of the Postal Department, that notice when attempted to be delivered to the respondent-company was refused by the addressee. Further, mere denial of receipt or refusal of service by the respondent on affidavit is not enough. Burden was ....
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....ers have not approached with clean hands. Even on the merits, according to the respondent, the claim of the petitioners is untenable. The respondent has already paid the dues in full and final settlement as back as in January, 1998. It is not a case where the respondent-company is unable to pay its debts, but a bona fide and genuine dispute about the correctness of the claim of the petitioner has been raised. The action of winding up cannot be resorted to in respect of such disputed claim and tried as a regular suit. 11. After having considered the rival submissions and perusing the pleadings and the relevant documents on record, in my opinion, this court will have to essentially answer two broad questions. Firstly, whether the statutory notice can be said to have been duly served on the respondent-company in the present case. Secondly, whether the defence of the respondent-company on the merits can be said to be a plausible one and whether it is possible to accept the stand of the respondent-company that the petitioner has approached this court with unclean hands. 12. Reverting to the first question, it would be apposite to advert to the requirement of section 434 of the Act....
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....red post with acknowledgment due on April 17, 1998, which also was returned with an endorsement "intimation", "not claimed". I shall deal with the efficacy of these notices a little later. 14. The original petitioner then claimed to have sent another statutory notice calling upon the respondent-company to pay the balance amount of Rs. 10,05,385 within 21 days from the receipt thereof towards outstanding dues, failing which he would proceed to initiate winding up action against the company. This statutory notice was sent through his advocate by telegraphic mode on June 26, 1998. The petitioners are relying on the communication issued by the postal authority dated July 22, 1998, which mentions that the said telegram was given for delivery on June 26, 1998, to be served on the respondent-company on its registered office but could not be delivered due to refusal by the addressee. If this claim of the petitioner is to be accepted, it would necessarily follow that the legal presumption that the respondent-company was duly served with the statutory notice sent by telegraphic mode is attracted. However, the question is whether it is permissible to send the statutory notice by telegraphi....
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....xplained the circumstances on account of which they were not in a position to produce the original documents which they otherwise possessed at the relevant time. The affidavit dated November 11, 2008, records that during the lifetime of the original petitioner, he possessed all the original documents which were kept in a separate packet/envelope. After his demise, the same was possessed by petitioner No. 1 which were given to their advocate whenever needed. It is stated that for the sake of convenience the said documents were kept with the brother of petitioner No. 1 Mr. Ravindra Patodia who was residing at Mumbai to be made available to the advocate whenever required. However, the said documents have been either destroyed due to white ants or lost during the renovation work of his brother's office. Moreover, in spite of due deligence, the said documents were not traceable for which reason the petitioners be permitted to rely on the secondary evidence, namely, copies of the documents which were filed along with the petition in 1998. It is also stated that as a matter of fact when the respondent-company took out company application after eight months from the date of passing of the ....
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....atutory notice by telegraphic mode dated June 26, 1998, through his advocate to the respondent-company on its registered address by post. The fact that such notice was sent is supported by the communication of the Department of Telecommunications exhibit U at page 56 dated July 22, 1998.The fact that the postal authorities attempted to serve the said telegraphic notice on the respondent-company on the given address which is the registered office of the respondent-company is also established. The said communication also establishes the fact that attempt to deliver the said. telegraphic notice on the respondent did not fructify as the same was refused by the addressee. In substance, the postal remark is that the telegraphic statutory notice sent to the respondent-company on its registered office was returned undelivered as the respondent refused to accept the same. As mentioned earlier, refusal to accept service of notice raises legal presumption of good service on the addressee. 17. To get over this position, the respondent would submit that the said legal presumption is a rebuttable one and has been rebutted by the respondents by filing affidavit of Jai Prakash Bhartiya who is t....
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....rinciple incorporated in section 27 of the General Clauses Act, 1897, would be attracted ; the requirement of clause (b) of proviso to section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address . . . In paragraph 15 of the same decision, the court proceeded to hold that when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of clause (b) of proviso to section 138 of the Act stands complied with . . . It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect." 20. In the case of K. Bhaskaran v. Sankaran Vaidhyan Balan reported in AIR 1999 SC 3762 ; [2000] 99 Comp....
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....d July 22, 1998, that the addressee (the respondent herein) refused to take delivery of the telegraphic notice dated June 26, 1998, whereby the respondent was called upon to pay the balance amount of Rs. 10,05,385 along with interest at the rate of 30 per cent. per annum within 21 days from the receipt thereof. It necessarily follows that the legal presumption of service of the said notice on the respondent-company on its registered address has not been rebutted by the respondents at all. 25. The petitioners have justly relied on the exposition of the single judge of this court in the case of K.N. David v. Chaubey reported in [2003] 4 Bom. CR 612. It has considered the legal position stated in the reported decisions of the apex court as well as our High Court. The court observed that in relation to the presumption arising under section 28 of the Bombay General Clauses Act, which is similar to section 27 of the General Clauses Act, 1897, only thing which has been clarified in Anil Kumar v. Nanak Chandra Verma reported in AIR 1990 SC 1215, is in a given case unchallenged testimony of a tenant may also be sufficient to rebut the presumption but that would depend on the facts of eac....
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....djudication to discharge the onus cast upon him by the statute. The court then went on to observe that it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly. 26. The real question is : whether the denial of the respondent placed on record by way of affidavit of the managing director can be said to be sufficient to rebut the legal presumption of service of statutory notice by telegraphic mode. The answer is an empathetic "No". Because, the affidavit is not only vague but it also does not mention that he has any personal knowledge about the fact that statutory notice sent by post by the petitioners were never received by any other person who was otherwise responsible to receive such communications in the registered office of the respondent-company. Merely saying that the affiant is the managing director and conversant with the facts is not sufficient especially when he has conceded in the affidavit that the respondent is a running company which presupposes that it has complete infrastructure and office. If so, obviously, the responsibility to receive communications must be ent....
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....espondents on the factum of service has already been analysed to hold against the respondents. For the same reasons, even the claim in regard to rebuttal of legal presumption in respect of the statutory notice dated March 6, 1998, sent by speed post with acknowledgment due and by registered post with acknowledgment due will apply on all fours. The issue directly stands answered in the exposition of the apex court in the case of Madan and Co., AIR 1989 SC 630, in paragraph 6, the apex court observed as follows : "Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver ....
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....o the tenant, and the word 'receipt' as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on or is received by, the tenant." (emphasis supplied) 28. Suffice it to observe that the respondents have failed to rebut the legal presumption of service even in respect of the statutory notice dated March 6, 1998, sent by speed post with acknowledgment due and registered post with acknowledgment due. 29. That takes me to the merits of the defence of the respondent. The fact that the petitioners have sold, delivered and supplied goods to the respondents from time to time vide separate invoices with the aggregate value of Rs. 30,05,385 is established from the record. The petitioners had sent the statement of account of the outstanding bills on September 2, 1997. The only dispute raised by the respondents at the relevant time was in respect of the claim of interest on the outstanding amount as can be discerned from the communication dated September 4, 1997, exhibit N page 43. That is the contempo....
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....oods received has been accepted by the petitioner. In so far as these documents are concerned, the genuineness thereof has been rightly questioned by the petitioners. In the first place, the reference number is left blank on the documents although the documents are issued on the letter head of the respondents. That is in contrast with the admitted document of the respondents such as page 121 produced along with the petitioner's affidavit to oppose the application for setting aside winding up order. Significantly, the document relied on by the respondents is a hand-written document. That creates doubt about its genuineness. Much emphasis was placed on the rubber stamp appearing on the said document. It is rightly contended by the Petitioners that such rubber stamp can be prepared privately by anyone. In so far as the signature of Ashok Kumar appearing against the seal of the Pragati Enterprises, the petitioners have asserted that no such person was ever authorised by the original petitioners. I am inclined to accept the stand of the petitioners that these discrepancies have been brought on record only to cause subterfuge and confuse the real controversy on hand so as to contend that....