ASHIM KUMAR BANERJEE, J. - (1.) This winding up petition was filed by the petitioner against the company alleging non-payment of a sum of Rs. 5 lakhs lent and advanced by the petitioner to the company. The company confirmed the balance as would appear from the confirmation of account as on 1st April. 1998. The company also paid agreed interest from time to- time. Last of such payment was made on 16th November. 1998. The statutory notice of demand was attempted to be served upon the registered office. However, the same came back with the endorsement 'Not known'.
(2.) The winding up petition was heard by Girish Chandra Gupta, J. when His Lordship by his judgment and order dated 16h May, 2002 admitted the winding up petition and directed advertisement to be published once in the "Statesman" and once in the "Pratidin". His Lordship granted liberty to the company to pay off the admitted sum together with costs of the application assessed on Rs. 10.000/-. Before His Lordship, the company took a plea that no statutory notice was served in the eve of law. His Lordship held that there was bona fide attempt on the part of the petitioner to serve statutory notice at the registered office, however,' it came back with the remark "Not known" and for that the petitioner could not be held responsible and as such His Lordship held that the notice was duly served.
(3.) An appeal was preferred from His Lordship's judgment and order dated 16th May, 2002. The Appellate Court by judgment and order dated 11th December, 2002 set aside the judgment and order of His Lordship and directed hearing of the matter afresh. Their Lordships were also of the view that while considering the matter afresh it should also be considered that even in absence of service of statutory notice whether the petitioning creditor on the existing pleadings had been able to make out a proper case for winding up.;