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Official Liquidator vs Dharti Dhan (P) Ltd on 10 February, 1977

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Calcutta High Court
Bhattacharjee Engg. (P.) Ltd. vs Santlal Jaiswal on 9 February, 2004
Equivalent citations: 2006 129 CompCas 29 Cal, 2004 53 SCL 250 Cal
Author: G A Sen
Bench: Ganguly, S Sen

JUDGMENT

1. This appeal has been filed by the appellant-company impugning an order dated 22nd July, 1997 passed by the learned Company Judge admitting a winding up petition and directing its advertisement once in the Statesman and once in the Biswamitra. Against the said order of the learned Company Judge, an appeal has been preferred and the Appellate Court by an order dated 23rd September, 1997, while admitting the appeal, ordered that no further steps be taken pursuant to the advertisement so published. While considering this appeal we have found that in the order under appeal the learned Company Judge held that there are some disputes raised by the Company but there is no finding by the learned Company Judge that the disputes are not bona fide disputes.

2. The material facts are that petitioning creditor filed a winding up petition after serving a statutory notice of demand. The service of notice of demand is also disputed. The claim is for goods sold and delivered. While disputing the claim of the petitioning creditor the company raised the defence as follows :--

(i) It did not receive the statutory notice.

(ii) There are substantial disputes to the claim of the petitioning creditor.

(iii) The name of the petitioning creditor does not figure as a creditor of the company in the balance sheet.

(iv) The so called letter of confirmation signed by one Sri Sahadeb Bera on behalf of the company cannot be relied on by the petitionning creditor inasmuch as Sahadeb Bera was never appointed as the accountant of the company and the letter was obtained from Sri Bera on an incorrect representation.

So far as the question of statutory notice is concerned, from the notice which has been disclosed in this proceedings, we find that the said notice is alleged to have been signed by someone whose identification has not been disclosed. There is admittedly no seal of the company on the said notice. In a supplementary affidavit filed in this proceedings, the petitioning creditor has claimed that the said notice has been signed by one Gopal Jana but Gopal Jana himself has filed an affidavit before the learned Company Judge and from the said affidavit it appears that the notice was never delivered to him by the postal peon and the initial on the acknowledgement card is not in the hand-writing of Gopal Jana. Sri Jana has also taken a stand in the affidavit that if the notice had been sent and received by him, it would have been brought to the notice of D. Bhattacharjee, the Director of the company.

3. Learned counsel for the petitioning creditor submitted that the notice was sent under registered post with A/D on the correct address after payment of postal charges and everything and as such sending of the notice under registered post with A/D raises a presumption of service. At the same time it is true that such presumption is rebuttable and when Sri Gopal Jana himself refused on oath that the said notice has not been received by him, the presumption is rebutted and the whole thing is covered within the thicket of factual disputes which cannot be adjudicated in a winding up Proceedings.

4. Now, coming to the merits of the claim of the petitioning creditor, this Court finds that in paragraphs 6 and 7 of the winding up petition, the claim has been made by the petitioning creditor but in those paragraphs there are no particulars and this claim relates to the period upto 31st March, 1991. Admittedly the company petition was filed in 1995. Insofar as paragraphs 8, 9 and 10 of the winding up petition are concerned, some bills have been referred to in support of the claim and ultimately the claim of the petitioning creditor boils down to the principal sum of Rs. 94,262.87 Paise. In support of the said claim the petitioning creditor relics on a letter of confirmation dated 18th February, 1994 which is said to have been signed by one Sahadeb Bera. The said letter of confirmation was disclosed in these proceedings. From the said letter it appears that the same is dated 18-2-1994 in respect of claims which are all made during 1990, 1991 and 1992. The said Sahadeb Bera has also written a letter to the company which is at page 64 and in the said letter Sri Bera has written that in the second week of February 1994 one Pannalal Shaw produced before him two statements relating to past transactions between the company and the petitioning creditor and the said Pannalal Shaw represented before Sri Bera that the statements are urgently required by him for his Income-tax purpose and that he would be financially ruined if the statements are not issued by the company. Mr. Bera further states that being induced by said entities he signed the statements. From a reading of the said letter no body can accept that the statements which were signed by Sri Bera are true and correct statements and Sri Bera has also stated in his letter that he repents his act of signing those statements. In the affidavit which has been filed by the company the claim of the petitioning creditor has been categorically and stoutly denied and it has been stated that the Company would get from the said petitioning creditor an amount of Rs. 35,059.37 and the name of the petitioning creditor does not appear in the balance sheet of the Company as its creditor. Insofar as the question of confirmation is concerned the same has also been denied, and it has been stated that Sri Bera was never an accountant of the company and therefore he had no authority to sign any such statement. Apart from that, from the said letter of confirmation it appears that claim of Rs. 1,44,062.77 Paise has been made without any particulars. In paragraph 7 of the winding up petition filed by the petitioning creditor, the said figure appears without any particulars. In the background of these facts, this Court is rather constrained to hold that the learned Company Judge has not exercised his discretion properly by accepting the claim of the petitioning creditor in the company and by admitting it and directing its advertisement. The dispute which has been raised by the Company and which has been disclosed above is a bona fide dispute and in respect of such disputed claim a summary proceeding like a winding up petition cannot be pressed into service. The learned counsel for the petitioning creditor relied on a judgment in the case of Official Liquidator Golcha Properties (P.) Ltd. v. P.C Dhadda [1980] 50 Comp. Cas. 175 (Raj). Reliance was placed on the said judgment in order to contend that an accountant is an officer of the company. There can be no dispute about the aforesaid proposition but in the instant case the company has never accepted that Sri Bera is the accountant of the Company. In his letter dated 12th July, 1995 addressed by Sri Bera to the Company. Sri Bera has also not claimed that he was appointed in the post of accountant of the said Company. On the other hand, Mr. Bera said that he was approached in his residence by one Pannalal Shaw on behalf of the petitioning creditor to give him two certificates in the circumstances already noted above. In view of this factual position, the ratio in the case of Official Liquidator Golcha Properties (P.) Ltd. (supra) is not attracted in the facts and circumstances of the case.

5. Therefore considering the facts and circumstances of this case this Court is of the opinion that the appeal should succeed. The appeal is therefore allowed. The order of the learned Company Judge is set aside There will be no order as to costs.

6. This judgment will not prevent the petitioning creditor from filing any suit subject to the laws of limitation.