JUDGMENT The Court: The above company petition has been brought for liquidation of the company above named (hereinafter referred to as the said company) by the petitioner. The facts and circumstances which is sought to be established for the insolvency of the said company is briefly stated hereunder. 2. The petitioning-creditor being a manufacturer and dealer of materials like pig iron, CI scrap and other related materials, on diverse dates in the year 1997, pursuant to the order placed by the above company sold and delivered a substantial quantity of various materials like pig iron, CI scrap etc. on various terms and conditions. It therefore, raised bills on diverse dates in between 15th April, 1997 and 4th October, 1997. The goods so sold and delivered, were accepted by the said company without raising any demur and dispute and in token of acceptance from time to time made part payment on diverse dates in between April, 1997 and October, 1997. The price of goods sold and supplied and part payment made against thereof have been particularised in a statement of account and, after adjusting all the payments being made a sum of Rs. 38,38,750/- was and still is due and payable by the company to the petitioning-creditor as per the said statement of accounts. The aforesaid statement of accounts detailing particulars as above being annexures "C" & "D" to the petition were duly confirmed by the said company. According to the petitioning-creditor it is entitled to claim interest at the rate of 24 per cent per annum on over due payments, hence its aggregate claim is Rs. 43, 09.848/-. Thereafter the said company in order to liquidate the aforesaid dues issued eight account payee cheques and handed over the same to the petitioning-creditor. However, the said cheques on being presented for clearance were dishonoured by non-payment, as such a proceeding under section 138 of the Negotiable Instruments Act has been initiated after dishonour of cheques and the said proceeding is still pending. Thereafter on or about 31st May, 2000 the petitioning-creditor served a statutory notice under section 434 subsection (4) of the Companies Act, 1956 calling upon the company to pay the said sum of Rs. 43,09,848/-. The said notice so attempted to be served came back with the postal endorsement not claimed. Thereafter on or about 31st May, 2000 the petitioning-creditor served a statutory notice under section 434 subsection (4) of the Companies Act, 1956 calling upon the company to pay the said sum of Rs. 43,09,848/-. The said notice so attempted to be served came back with the postal endorsement not claimed. Therefore, for abundant precaution notice was served at the factory of the company at Benaras Road, Kona, Howrah by registered post with acknowledgement due under postal receipt. The said second notice did not come back unserved rather the postal authority has certified the same having been delivered at the above mentioned address. The claim of the petitioner at present is Rs. 68,69,588/- which is calculated including interest at the aforesaid rate of 24 per cent per annum from 1st April, 1998 till 10th October 2000. In spite of notice, the said amount has neither been paid nor secured, hence the company has become unable to pay its debt. 3. In the affidavit-in-opposition the company has defended stating that that there has been mutual transaction between two parties in which the petitioner used to supply the aforesaid materials as stated in the petition and at the same time the company used to sell and supply substantial quantity of pig iron, and on account thereof there has been substantial amount due and payable by the petitioning creditor to the company. It is also stated that the cheques spoken about, were issued earlier for advance payment as against the future sale and supply to be made by the petitioner, of the scrap materials not for part payment as alleged. It has been admitted in the affidavit-in-opposition that after giving all adjustments of the payment made mutually for the price of the goods sold and supplied by the company owes a sum of Rs. 5,000/- to the petitioning creditor. It has also been said that winding up petition is not maintainable as there has been suppression of fact as to the aforesaid reverse supply of the goods by the company and further there has been no lawful service of statutory notice. 4. In the affidavit-in-reply the petitioning creditor has denied that any materials was sold and supplied by the company to it and it is also denied and disputed correctness and genuineness of the documents in support of such sale and supply. 5. 4. In the affidavit-in-reply the petitioning creditor has denied that any materials was sold and supplied by the company to it and it is also denied and disputed correctness and genuineness of the documents in support of such sale and supply. 5. During pendency of the winding up petition both sides have filed supplementary affidavit in order to strengthen their respective cases bringing more facts which were not stated earlier. 6. Mr. Shyamal Sarkar learned Advocate for the petitioner while highlighting the aforesaid facts stated in the petition, affidavit-in-reply and supplementary affidavit, submits that there is no dispute rather it is admitted his client has supplied the goods and the cheques have been dishonoured. It is further submitted that as far as the service of statutory notice is concerned the endorsement of the postal authority 'not claimed' is a good service under law. 7. He further submits that actually in between 1st September, 1998 and 9th February, 1999 and again in between March, 1999 and July, 1999 several cheques were issued to liquidate the said sum of Rs. 43, 09,848/- and on the request of the company the said cheques were returned as at that point of time there had been no sufficient balance in the Bank. Again in between 1st February, 2000 and 25th February, 2000 fresh cheques as stated in the petition were issued for the same amount. Thus the factum of dishonour of cheques it self is proof of inability of the company to pay the debts. Explanation sought to be given in the affidavit-in-opposition is simply unbelievable and there is no document to support the story, and it is told only after winding up petition is initiated. These apart the statement of account prepared by the petitioning-creditor was duly confirmed by the company and there is no denial and indeed it has been accepted, but with flimsy excuse, that the same was made for income tax purpose. 8. He further submits that documents namely sales tax declaration and challan for purported supply of goods are wholly unfounded and as such manufactured. Even if it is assumed for argument sake that there has been supply of good by the company, adjustment cannot be made without agreement between the parties in law. In support of this legal proposition he has relied on a decision of Supreme Court reported in 1993 (2) SCC 443 . 9. Mrs. Even if it is assumed for argument sake that there has been supply of good by the company, adjustment cannot be made without agreement between the parties in law. In support of this legal proposition he has relied on a decision of Supreme Court reported in 1993 (2) SCC 443 . 9. Mrs. Lopita Banerjee, learned Advocate led by Mr. Ratnanko Banerjee learned Advocate appearing for the company submits that statutory notice has not been served lawfully and as such winding up petition is not maintainable at all. It is an admitted position that notice has come back with endorsement 'not claimed'. According to her, service of this nature is not service in the eye of law. 10. She further submits that there is serious dispute in this matter in the sense that there has been supply of pig iron by the company to the petitioning-creditor and this fact has been totally suppressed and on the ground of suppression this petition must be dismissed. She submits that suppression is one of the facets of fraud and fraud vitiates everything. In support of this she has relied on two decisions one is of Supreme Court another is of this Court reported in 1994(1) SCC 1 and 2004(1) CHN 448 respectively. . 11. She further submits that documents showing sale and supply of pig iron to the petitioning creditor are produced before this Court and because of non-payment of the price of aforesaid materials, dues of the petitioner has been adjusted against the dues payable by the company. Hence no amount is outstanding and payable except a sum of Rs. 5,000/- and odd, and the company is willing to pay the same. Under the law the company is entitled to adjust irrespective of any agreement as a matter of course and case of adjustment can be made out in the form of setting off as far as the company's defence is concerned in the winding up petition as it is done in a civil suit. If there is plea of setting of it must be held there has been bona fide dispute. In support of her submission she has relied on a number of decisions reported in 19 CWN 1183, ILR (5) Cal 333, ILR (32) Ca1576, AIR 1941 All 278 and AIR 1957 Kerala 100. . 12. If there is plea of setting of it must be held there has been bona fide dispute. In support of her submission she has relied on a number of decisions reported in 19 CWN 1183, ILR (5) Cal 333, ILR (32) Ca1576, AIR 1941 All 278 and AIR 1957 Kerala 100. . 12. I have gone through statements and averment in the respective pleadings and supplementary affidavits and counter-affidavits filed by both the parties and heard the learned Counsel for the parties. The point involved in this case is whether the petitioner has been able to make out bona fide dispute as against the claim of the petitioning creditor. On reading the pleading I find the following are the admitted positions: (i) The petitioning-creditor had supplied the goods as mentioned in the petition in between April 1997 to October 1997. (ii) The company has also issued the cheques in favour of the petitioning-creditor and the same were dishonoured by non-payment. (iii) A sum of Rs. 5,000/- and odd is due and payable by the company to the petitioning-creditor. 13. On the face of the aforesaid admitted situation the company has raised dispute that there has been reciprocal supply of substantial quantity of pig iron to the petitioning-creditor, consequently price of the same has been adjusted against the dues of the petitioner. In order to establish this case of sale and supply of pig iron necessary invoice and challans were produced. The company stated that those cheques were issued for advance payment for future supply of materials by the petitioning creditor. Now the question is how far this case of rival claim by way of set off is believable reading affidavit and even if it is believed whether such plea of set off of the claim is legally acceptable in this case. 14. Obviously preliminary points regarding service' of statutory notice has to be addressed first, as it is the foundation of the winding up proceeding of this nature. It appears that the statutory notice which was sought to be served by registered post with acknowledgement due card at the registered office of the company has come back with postal endorsement' not claimed'. Obviously preliminary points regarding service' of statutory notice has to be addressed first, as it is the foundation of the winding up proceeding of this nature. It appears that the statutory notice which was sought to be served by registered post with acknowledgement due card at the registered office of the company has come back with postal endorsement' not claimed'. I have noted the address of the registered office of the company mentioned in the said notice and also the acknowledgement due card which has come back with remark 'not claimed' and I find that the address written therein is what is mentioned in the cause title namely 53, Dr. Abani Dutta Road, Howrah-711101. In the affidavit-in-opposition the company has not denied the factum of existence of the registered office at the aforesaid address. Hence there is no reason to presume the notice did not reach at the said address. Endorsement of the postal authority 'not claimed' in my view means the letter was sought to be delivered but the addressee does not acknowledge to be as such and according to me if such an endorsement is made by the postal authority the same amounts to avoidance of service if not refusal to accept service. I am of the view if a communication is dispatched with correct address and the same in fact is tendered at the same address and when there is no case of shifting or changing of the place of business the presumption is that letter was duly tendered and the same has not been accepted. This presumption has not been rebutted by adducing cogent evidence that at that point of time when the letter was sent, the office of the company was closed. It appears from the records another notice which was sought to be served at the factory address of the company was delivered as per certificate issued by the postal authority. It is also significant that the letter of the learned Lawyer for the petitioner namely Mamta Sarogi dated 21st June, 2000 was received and acknowledged at the same address by the company by giving reply to the same. Hence I hold that the notice under section 434 sub-section (4) has duly been served by the company as such this winding up proceedings is maintainable. 15. Hence I hold that the notice under section 434 sub-section (4) has duly been served by the company as such this winding up proceedings is maintainable. 15. While delving into the merit of the case I feel this Court is to examine how far the case of the reciprocal supply of materials to the petitioning-creditor is factually believable before it is concluded that there has been bona fide dispute. There has been no reply to the statutory notice claiming outstanding dues and recording factum of dishonour of cheques. I find after winding up proceedings is initiated for the first time the case of supply of pig iron to the petitioning-creditor has been made out in the affidavit of the company and there has not been a single word spent for this at any point of time earlier. My finding is clearly discernible in the letter dated 7th June, 2000 of the company addressed to the petitioning-creditor. In this letter different story has been made out. and there is no mention of supply of the materials of pig iron nor there is any story of adjustment of payments. The story of supply of the materials of pig irons to the petitioning-creditor by the company has been denied in the affidavit reply emphatically. Even signatures purporting to be of employee of petitioner allegedly put on the challans have been denied and disputed. The petitioning creditor in the affidavit in 'reply has even denied and disputed genuineness of sales tax declaration forms. I am of the view these documents are created for the purpose of putting up of defence of reciprocal supply of materials. Similarly, letter dated 7th February, 2000 being Annexure "Y" is disclosed for first time in the affidavit in reply to the supplementary affidavit of petitioning-creditor, who has no chance to deal with the same as parties cannot be allowed to go on filing affidavit after affidavit. So this Court does not take note of the same. Even if it is looked into the content 'of the letter does not help to resist claim of the petitioner regarding dishonour of cheques, it merely records receipt of cheques for advance payment. Had there been a supply truly the first reaction of the company in the letter dated 7th June, 2000 would have been reciprocal supply of the materials having been made. Had there been a supply truly the first reaction of the company in the letter dated 7th June, 2000 would have been reciprocal supply of the materials having been made. Even in the letter dated 6th July, 2000 being Annexure "G" to the affidavit-in-opposition the company has no where stated supply of pig iron to the petitioning creditor rather text of this letter only relates to the settlement and reconciliation of the claim of the petitioner. Even if such case is accepted for argument sake, according to me, as rightly urged by Mr. Sarkar the learned Counsel for the petitioning-creditor, right of adjustment cannot be natural nor the same can be asserted automatically under the law unless there has been an agreement to that effect. The Supreme Court in case of Bhoja vs. Rameshwar Agarwala & Ors., reported in 1993(2) SCC 443 , in paragraph 21 held to resolve landlord & tenant dispute, amongst other while approving of the view taken by Full Bench decision of Patna High Court and Madras High Court that: "....a tenant cannot save himself from the consequences of eviction under the Act on the ground of default in any 'payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the- hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the notice to quit and even in the written statement by way of set-off within the period of limitation and by following the procedure for claiming such a set-off while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim 'automatic adjustment." (Emphasis supplied) 16. It is true the Hon'ble Apex Court propounded the above legal principle in the case of eviction of tenant, but I think the said principle is applicable in claim of adjustment in any transaction of debtor and creditor. 17. Therefore, plea of setting off in the action in Court for the first time cannot be taken on the ground of automatic adjustment. 17. Therefore, plea of setting off in the action in Court for the first time cannot be taken on the ground of automatic adjustment. In the affidavit-in-opposition it has been specifically stated that there has been no agreement for adjustment as alleged. I do not see any case of suppression or fraud having regard to case and counter case of the parties. In view of the aforesaid Supreme Court decisions the authorities cited in this respect by Mr. Ratnanko Banerjee are no longer good law. The decision cited on the question of fraud is also not opposite. 18. In the affidavit-in-opposition there is simply no acceptable explanation as to why the cheques were dishonoured. It has been said that there has been no consideration for the cheques being issued. In my view factum of issuance of cheques in favour of particular person presupposes consideration unless it is shown that cheques were issued under threat coercion or fraud. There is no such case having been made out. This apart in the winding up petition in the statement of transaction (being Annexures "E" and "D") wherein outstanding dues with particulars are also indicated. I have examined the statement very minutely and it records the amount due and payable on account of sale and supply of the goods to the company and also credit of the amounts of payment of the dues made from time to time. This statement is described to be confirmation of accounts made by the company with seal and signature. There is no bona fide nor legally entertain able dispute to such confirmatory statement having been made out; only explanation has been given that this was done for income tax purpose. However, this plea has been taken in relation to Annexure "D", there is no explanation simply regarding Annexure "C". In my view outright rejection of such plea by the Court of Law would not be suffice, the same ought to be sternly disapproved as it is desperate attempt to wriggle out liability with conscious act of dozzing if not evading tax liability. If such a plea is entertained by the Law Court or any Tribunal, it would amount to illegal encouragement being offered to tax dozzer and/or evader. The balance sheet prepared unilaterally by the company in relation to the transaction has no manner of relevancy in this matter. If such a plea is entertained by the Law Court or any Tribunal, it would amount to illegal encouragement being offered to tax dozzer and/or evader. The balance sheet prepared unilaterally by the company in relation to the transaction has no manner of relevancy in this matter. I hold at the risk of repetition that strategy of evading due income tax is illegal and this illegality 'can not be accepted to be defence in any sense in any legal proceedings. In any event when the company consciously accepted and confirmed the said statement to be true once, it is estopped from taking any plea otherwise than confirmation. 19. Therefore, I hold that dispute raised in this proceeding is not dispute for the story of reverse supply of the materials to the petitioning-creditor has been set up for the first time in the affidavit factually. Such a dispute for the first time should not be entertained by the Company Court as a bona fide dispute to resist the claim of the petitioning-creditor. Therefore, I find that the company is really unable to pay the dues as the cheques were dishonoured. There has been no payment admittedly thereof and as such criminal proceedings has been initiated. I hold that company is unable to pay the debts of the petitioning creditor to the extent of Rs, 43, 09,848 being the amount covered by the said cheques. It is not possible for this Court to adjudge payability of balance claim in the petition on account of interest without accurate accounting which is complex in nature. However, if the company pays this amount by eighteen equal monthly installments first of such installment shall be paid on or before 16th April~ 2009 and go on paying month by month on or before 16th of each succeeding month this petition will remain stayed permanently. In case of default in paying the first installment and the last installment or two intermediary installments the petition will stand admitted and in that case the petitioning-creditor shall make publication once in the Statesman and once in Sanmarg. Publication in Calcutta Gazette is dispensed with. 20. Liberty to mention for bringing the matter in the list after the advertisements mentioned above is complete. 21. Mr. Dubey appearing for the company prays for stay of operation of the judgment and order. Such prayer is granted. Publication in Calcutta Gazette is dispensed with. 20. Liberty to mention for bringing the matter in the list after the advertisements mentioned above is complete. 21. Mr. Dubey appearing for the company prays for stay of operation of the judgment and order. Such prayer is granted. There will be stay of judgment and order for a fortnight from date. Let a singed copy of the minutes of the operative portion of the judgment and order be made available to both the parties on usual undertakings. 22. All parties concerned are to act on a xerox signed copy of this order upon putting in requisition for drawing up and completion of the order and for obtaining certified copy thereof. Directions given.