9911796707
TMI Blog2013 (9) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... rubber seal and signature. The petitioner also annexed the confirmation of accounts dated 1st April 2011 confirming the balance by the company by putting the rubber seal and the signature and the date at the footnote. The statutory notice is also served on the company. The acknowledgement due card bears the rubber seal and signature. According to the petitioner, it is indisputed that the supplies were made to the company who after receiving the same avoided the payment. The company admittedly did not reply to this statutory notice. The affidavit-in-opposition filed by the company reveals the defences taken against the alleged claim of the petitioning creditor. It would be relevant to narrate the excerpts of the defences taken by the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany's acknowledgement of liability. He placed reliance upon a judgment of the Gujarat High Court N. Desai Papers P. Ltd. vs. Computer Skill Ltd. (2012) 171 Company Cases 158 (Guj.) and a judgement of this Court in the case of K.T.S (Singapore) PLC. Ltd. vs. Associated Forest Projects (Pvt.) Ltd. reported in (1996) 85 Company Cases page 190 (Cal). He further submits that it is immaterial who is managing or controlling the company if it can be proved that the supplies are made to the company and placed reliance upon a judgement of this Court in the case of Deepika Housing Projects Pvt. Ltd. Vs. Carboxy Chemicals Pvt. Ltd. reported in 2008 (1) Calcutta High Court Notes Page 419. It is audaciously submitted that the letters issued to the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purported invoices and the confirmation of accounts which bears the rubber seal and the signature of the authorised signatory. The alleged supplies, if any, appear to have been made during the relevant period from 4th April 2010 to 25th April 2010. I am not unmindful of the proposition of law that if the Court finds that a sham defence is taken only for the purpose of avoiding the rigour of the provisions applicable to the winding up of the company, the Court should not consider the same to be a bona fide one. It is undisputed that non reply to a statutory notice raises a presumption but such presumption is certainly rebuttable. The specific case made out by the company is that the document which is the foundation of the claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit-in-opposition would also reveal that the similar stand is taken by the company. The company has disclosed those letters in the said affidavit-inopposition and has not concealed the same to draw an adverse inference if bought by the petitioning creditor subsequently. Those invoices and/or confirmation of accounts were brought to be notice of the company obviously upon service of the copy of the winding up petition. Several letters were caused by the Advocate-on- Record to have the inspection thereof. After taking the inspection the company took such a plea that the rubber seal and the signature appended in the said documents are not the seal and signature of the company and its officer. The said defence cannot be set to be unfound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther proceeds in keeping in mind the aforesaid special facts and raises an adverse inference against the company and in process thereof has further held that non-response to the statutory notice also raised a presumption against a bona fide defence. In case of Deepika Housing Projects Pvt. Ltd. (supra) the family owned various properties and the companies have managed and controlled by its members. Subsequently, the family members fall on a logger's head and ultimately settlement was arrived by which the management of the some of the companies were handed over to the specific members. One of the brothers claims of money which was advanced and/or given in loan in his personal capacity and in the aforesaid prospective the Court held that it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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