9911796707
TMI Blog1960 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent company instituted a suit in this court being Suit No. 3983 of 1948 against the appellant company for realisation of the sum of Rs. 85,902-15-0 for work done and materials supplied. On August 22, 1958, a decree was passed against the appellant company for Rs. 62,712-15-0 after giving credit for the value of certain raw materials which remained in the possession of the respondent company. On March 14, 1959, the respondent company sent a letter of demand by registered post with acknowledgment due, to the appellant company at its registered office, under the hand of its solicitors, Messrs. Charu Chandra Bosu, demanding payment of the sum of Rs. 62,712-15-0 with interest and costs which was due under the said decree. It is alleged in paragraph 7 of the petition for winding up by the respondent company that the letter so sent was not accepted by the appellant company and was returned to the respondent company's solicitors with the postal endorsement "refused ". The original postal cover is annexed to the petition and is marked "B ". As the appellant company did not pay the amount demanded, the respondent company presented a petition for winding up on September 7, 1959, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner company must have procured an alleged refusal to create evidence. I deny that any valid demand was ever made or that the company has failed or neglected to make any payments or compound any claim as alleged. I say that the alleged notice is bad, invalid and of no effect as alleged or otherwise." The verification clause of this affidavit shows that only part of this paragraph up to the words "no such letter was ever received by the company" was verified as true to knowledge, but the portion "nobody on behalf of Sarkar Estates Ltd. had ever returned the same " was verified as based on information received from the employees of the company and believed to be true. In the affidavit-in-reply which was filed on behalf of the respondent company and affirmed by the said manager, Sibenitosh Ghatak, paragraph 8 of the affidavit-in-opposition was dealt with in paragraph 8 of the affidavit-in-reply. But the statements in this paragraph-paragraph 8-were verified as true to the knowledge of the deponent. Thus, there is contradictory verification with regard to the statements in paragraph 7 of the petition and in paragraph 8 of the affidavit-in-reply, and upon this state of the affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany. The original postal cover containing this letter of demand is annexed to the affidavit of Kanai Lai Banerjee and this letter also bears evidence of its being sent and refused. The relevant paragraph of the affidavit which deals with this fact of service of the letter of demand on the appellant company is paragraph 5. Then again in paragraph 7 of this supporting affidavit it is stated that after the said letter of demand dated September 4, 1959, had been returned by the post office, the deponent personally went to Gosto Behary Sarkar, who is one of the directors of the said company, and showed him a copy of the said letter and requested him to make the payment, but he expressed his inability to make any such payment. Gosto Behary Sarkar has not come forward with any affidavit to deny this. Thus, although there is some contradiction between the re-verification clause of the petition and the verification in the affidavit-in-reply of the respondent company, we are satisfied that the facts stated in paragraph 7 of the petition as supported by the re-verification clause are correct and the trial court was justified in accepting the case of the petitioner as true on the materials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor." Now, it is well known that under section 163 of the Indian Companies Act, 1913, the relevant words were "by leaving the same at its registered office ", but these words were replaced by the words "by causing the same to be delivered by registered post or otherwise at its registered office" under the Companies (Amendment) Act, 1936. So, a conscious and deliberate departure was made by substituting the word "delivered" in place of "leaving" and providing that such delivery may be made by registered post or otherwise. But the word "leaving" was retained in section 148 of the Indian Companies Act of 1913 which read as follows: "A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company," In the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the post office has no other alternative but to return the letter to the sender with the endorsement of refusal and I am not prepared to hold that it is open to the company in such a case to say that because it did not accept the registered letter there was no delivery of the letter to the company. It appears to me that when a registered letter of demand, which is properly addressed, comes back with the endorsement of refusal made by the postal peon, the ordinary presumption which arises in the case of service by registered post under section 27 of the General Clauses Act and sections 114 and 16 of the Indian Evidence Act is available to the creditor and the creditor can rely on the endorsement of refusal for proof of the fact that the letter had been duly delivered or tendered to the company, but it refused to accept the letter. The expression "served by post" which occurs in section 27 of the General Clauses Act is also used in section 434(1)( a ) and the expression "causing it to be delivered at its registered office by registered post or otherwise" has not, in my view, the effect of excluding the operation of the ordinary presumption. Service comprehends delivery. The expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y judgment, it is necessary for the defendant under rule 13 of Order IX, Civil Procedure Code, to make good that case." Those observations of the learned Chief Justice were made in connection with a case where the service of the writ of summons was in question. Bearing these observations in mind, there can be no doubt that there are not sufficient materials before the court of a convincing nature to satisfy the court that the case set up on behalf of the company as to the letter of demand not being tendered to the company or being refused by the company, can be accepted as true. There is thus no substance in the contention based on the construction of section 434(1)( a ) of the Companies Act, 1956. It was also faintly argued that the petitioning creditors' debt is a disputed debt and so cannot form the foundation of a winding up petition. The argument is that the appellant company has filed a suit against the respondent company claiming over three lakhs of rupees and if this suit, which is pending, succeeds the appellant company will be entitled to set off the amount of the decree that may be passed against the claim of the respondent company. But, I fail to see how the mere fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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