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TMI Blog2019 (1) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an amount of ₹ 50 lacs alongwith the cheque towards the payment of interest. It is noticed that the Appellant further issued cheques dated 17th January, 2009 and 2nd April, 2009 for ₹ 1,54,667/- and ₹ 67,544/- respectively towards payment of interests along with four post dated cheques of the principal amount. Three out of the four post dated cheques were encashed and as a result a balance of ₹ 15 lacs remained due. Further cheques have been issued by the Appellant Company towards the payment of interest. Finally a cheque was issued on 15th November, 2010 for an amount of ₹ 10 lacs which was encashed and as a result, an amount of ₹ 5 lacs remained due and payable by the Appellant to the Respondent. 7. Notwithstanding several reminders issued by the Respondent for repayment of the balance loan amount, the Appellant failed and neglected to clear the outstanding dues. On 8th August, 2012, the Respondent sent a communication to the Appellant. In response thereto, on 4th March, 2013, the Appellant forwarded copies of ledger accounts reflecting outstanding balance amount of ₹ 7,29,905/-, due and payable to the Respondent as on 31st March, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing the OL as the PL for a period of four weeks. In case within four weeks from today, the respondent were to pay to the petitioner the outstanding amount payable to the petitioner as reflected in their books of accounts, namely, of ₹ 7,29,905/-, the aforesaid order shall stand revoked. 22. List on 08.02.2019. 10. Aggrieved with the aforesaid order, the Appellant has filed the present Company Appeal. 11. The Court has heard the learned counsel for the Appellant. 12. Learned counsel for the 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. 13. During the arguments, the Court had enquired if the Appellant was agreeable to deposit the disputed amount in question before the Court in order to show his bona fide as a condition for the Court to issue notice to the Respondent. The counsel for the Appellant stated that in so far as the present petition is concerned, since it only involves an amount of ₹ 7,29,905/-, Appellant is agreeable to deposit the said amount, but he would not be in a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pts 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. This Court in the case of Kalu Ram v. Sita Ram 1980 RLR 44, Metropolis Travels Resorts (I) Pvt. Ltd v. Sumit Kalra 98(2002)DLT 573 and Krishan Kumar Aggarwal v. Life Insurance Corporation RFA (OS) No. 93/2010, held that with service of notice having been admitted without reservation and having not been replied to, adverse inference should be drawn against the noticee in that eventuality. 17. 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. We have also examined the case on merits. The Appellant does not have any cogent or plausible defence. Apart from baldly denying the liability, there is no material placed on record before the Company Court to substantiate the stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denying having sent this communication or having executed this communication, the respondent have not further bothered to give any further information regarding their books of accounts. In para 17 of the reply, in response to para 17 of the petition, they have simply denied having sent the ledger accounts. They have also denied that any e-mail was sent to the respondent. It has been submitted that Mr. Sandeep Kumar was the accounts head of the respondent Company and is still working and no one from the respondent side ever sent this account. 11. The document filed by the petitioner is on the letter head of the respondent duly affixed with the stamp of the respondent. If the statement of account was wrong or a forged document, the respondent would have filed their own books of accounts showing that the statement of account which has been relied upon by the petitioner does not tally with the actual original books of account. No such steps have been taken. No attempt is made to support this plea by filing any documents which are manifestly in power and possession of the respondent. Best evidence that is available to the respondent has been hidden from the court. It is a settled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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