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2017 (4) TMI 1019 - BOMBAY HIGH COURTCompany petition for winding up - allegation that company failed to make the payment against dues - Held that:- Insofar as the submission of the learned counsel that the petitioner has already filed the company petition in the year 2012 but the same was required to be withdrawn in view of the petitioner not having been issued a statutory notice at the registered office of the respondent company is concerned, in my view the said petition which was filed without issuing a statutory notice at the registered office of the respondent would not save limitation. The letter dated 23rd February, 2012 addressed by the respondent calling upon the petitioner to furnish certain details would also not extend the period of limitation. It is held in catena of judgments that the correspondence does not extend the period of limitation unless there is acknowledgement of liability. Insofar as the issue raised by the learned counsel for the respondent that the notice was not served upon the registered office of the respondent and the packet containing such notice was returned unserved with the remark “left” is concerned, a perusal of the said registered AD indicates that the Postman has made an endorsement on the said envelope “Left company. Return to the sender”. It is not the case of the petitioner that the petitioner made any efforts thereafter to serve the notice personally at the registered office of the respondent. A perusal of the affidavit in reply indicates that it is the case of the respondent that the registered office address of the respondent continues even till today and that the respondent company is carrying on business from the said address. No rejoinder is filed to controvert this averment. In my view, Dr.Chandrachud is right in his submission that the statutory notice not having been served at the registered office of the respondent company, the petition for winding up was not maintainable on that ground also. Insofar as the last submission of the learned counsel for the respondent that there are duplicate invoices is concerned, a perusal of the documents annexed to the petition indicates that there is some duplication of invoices. The explanation of the learned counsel for the petitioner on this issue that they are not duplicate invoices but were issued for various works executed by the petitioner for the respondent from time to time is not convincing. This disputed fact cannot be gone into by this Court in the company petition. Thus the defences raised by the respondent in the affidavit in reply to which there is no rejoinder, are bonafide and are not moonshine. The disputed questions cannot be gone into in this winding up petition.
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