9911796707
TMI Blog2013 (9) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is certainly rebuttable. The specific case made out by the company is that the document which is the foundation of the claim of the petitioning creditor is not a genuine one and contains spurious and or manufactured seal and the signature. Had it been a case of bare allegation to that extent the Court would have brought the same within the zone of sham defence but in the instant case certain other documents bearing the seal and signature appended therein on its bare look suggests that the company uses a different seal and signature. There must be a clear and unambiguous acknowledgment and/or admission of the liability which, this Court finds to be absent. The company not only disputed the supple of the material but disputed the veracit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. 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 company in the affidavit. The company at the very outset took a plea that the rubber seal and the signature appended on the purported tax invoices and the confirmation of an account do not bear the actual seal of the company and the signature of its officials. The company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 alleged lessee i.e. Expo Minerals Pvt. Ltd. by the company would suggest that the company has acknowledged the liability of the petitioning creditor and the same should be construed as an admission on its part. Therefore, he concludes that the company has not raised any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nmindful 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 petitioning creditor is not a genuine one and contains spurious and or manufactured seal and the signature. Had it been a case of bare allegation to that extent the Court would have brought the same within the zone of sham defence but in the instant case certain ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently. 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 unfounded and baseless and made for the purpose of this winding up petition. Furthermore, there must be a clear and unambiguous acknowledgment and/or admission of the liability which, this Court finds to be absent. Two letters which are disclosed by the company do not run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ika 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 is irrelevant who is in control of the company as the company is indebted to petitioning creditor. Where a serious question like one which is raised in this matter is involved and which does not appear to be based on a stray allegation but supported by some document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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