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2019 (1) TMI 520 - HC - Companies LawAppointment of Provisional Liquidator - time limitation - Appellant argued that the learned Company Judge has erred in admitting the petition and appointing a provisional liquidator, without taking note of the fact that the claim of the Respondent was barred by limitation - Held that:- In the present case, it is significant to note that the Appellant has not denied the receipt of the legal notice issued by the Respondent prior to filing of the winding up petition. The legal notice annexed along with the Company petition is duly supported with the copies of the postal receipts, courier receipts and tracking report of the courier company evidencing the service of the said notice on the Appellant. Concededly, the Appellant did not give any reply to the said legal notice. In case the Appellant indeed had a justifiable defence, the same ought to be taken immediately on the receipt of the legal notice. The Appellant did not do so and therefore adverse influence has to be drawn against the Appellant. However, failure on the part of the Appellant to reply to the legal notice is not the only reason for this Court to decline to admit the instant appeal - There being no cogent defence of the Appellant to deny the claim, the only question that merits consideration is as to whether the letter dated 4th March, 2013 enclosing the outstanding balance confirmation is a forged communication that would render the claim to be time barred. The communication dated 4th March, 2013 is on the Appellant’s Company letter head and also bears the rubber stamp along with the signatures of Ms. Shruti Gaur affixed on it. Learned Single Judge has also noted that in the reply there is only a bare denial of the aforesaid documents. There is no attempt on the part of the Appellant to justify the denial by producing the original ledger accounts or the copies thereof that would contradict the entries reflected in the said ledger account - The Appellant Company had the opportunity to contest the claim by producing the ledger accounts maintained by them to traverse and disclaim the entries reflected with the letter dated 4th March, 2013. Since this was not done, the learned Single Judge was justified in drawing an adverse inference against the Appellant Company on the doctrine of onus of proof. It is well settled in law that party who is having the possession of the original documents ought to take steps to produce the same. Appeal dismissed - decided against appellant.
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