- (1.) This appeal has been filed by the appellant-company impugning an order dated 22nd July, 1997 passed by the learned Company Judge admitting a winding up petition and directing its advertisement once in the Statesman and once in the Biswamitra. Against the said order of the learned Company Judge, an appeal has been preferred and the Appellate Court by an order dated 23rd September, 1997, while admitting the appeal, ordered that no further steps be taken pursuant to the advertisement so published. While considering this appeal we have found that in the order under appeal the learned Company Judge held that there are some disputes raised by the Company but there is no finding by the learned Company Judge that the disputes are not bona fide disputes.
(2.) The material facts are that petitioning creditor filed a winding up petition after serving a statutory notice of demand. The service of notice of demand is also disputed. The claim is for goods sold and delivered. While disputing the claim of the petitioning creditor the company raised the defence as follows :-- (i) It did not receive the statutory notice. (ii) There are substantial disputes to the claim of the petitioning creditor. (iii) The name of the petitioning creditor does not figure as a creditor of the company in the balance sheet. (iv) The so called letter of confirmation signed by one Sri Sahadeb Bera on behalf of the company cannot be relied on by the petitionning creditor inasmuch as Sahadeb Bera was never appointed as the accountant of the company and the letter was obtained from Sri Bera on an incorrect representation. So far as the question of statutory notice is concerned, from the notice which has been disclosed in this proceedings, we find that the said notice is alleged to have been signed by someone whose identification has not been disclosed. There is admittedly no seal of the company on the said notice. In a supplementary affidavit filed in this proceedings, the petitioning creditor has claimed that the said notice has been signed by one Gopal Jana but Gopal Jana himself has filed an affidavit before the learned Company Judge and from the said affidavit it appears that the notice was never delivered to him by the postal peon and the initial on the acknowledgement card is not in the hand-writing of Gopal Jana. Sri Jana has also taken a stand in the affidavit that if the notice had been sent and received by him, it would have been brought to the notice of D. Bhattacharjee, the Director of the company.
(3.) Learned counsel for the petitioning creditor submitted that the notice was sent under registered post with A/D on the correct address after payment of postal charges and everything and as such sending of the notice under registered post with A/D raises a presumption of service. At the same time it is true that such presumption is rebuttable and when Sri Gopal Jana himself refused on oath that the said notice has not been received by him, the presumption is rebutted and the whole thing is covered within the thicket of factual disputes which cannot be adjudicated in a winding up Proceedings.;