A.K.Banerji, J. - (1.) By means of the above noted company petition filed under Sections 433 and 434 of the Companies Act, 1956 (the Act, in short) the petitioner M/s. N. N. Consultants Private Limited (the petitioner, in short) have sought the winding up of the company M/s. Khatema Fibres Limited (formerly known as Khatema Paper and Board Mills Limited) (the respondent-company, in short) on the ground that the respondent-company is indebted to the petitioner and has not paid its dues despite service of statutory notice ; hence the respondent-company is unable to pay its debt and should be ordered to be wound up.
(2.) Briefly stated, the case of the petitioner as set out in the petition is that on the request of the respondent-company the petitioner gave a short-term loan of Rs. 4,75,000 in the month of April, 1989, which was payable on February 28, 1990, along with interest. The respondent did not pay the said amount or the interest due, hence the petitioner was constrained to serve a statutory notice on September 22, 1995, which was duly served on the respondent-company. Another notice was sent on January 4, 1996, with a copy of the same to the Delhi office of the respondent and to the managing director claiming the principal amount of Rs. 4,75,000 along with interest at the rate of 17 per cent. per annum, the total being Rs. 14,16,176. Despite the said notices being duly served upon the respondent no amount was paid, neither any reply was given, hence the present petition.
(3.) On notice being issued to the respondent-company to show cause why this petition may not be admitted and advertised, the respondent-company put in appeapance and has filed a counter affidavit controverting the allegations made in the petition. The respondent has not only challenged the maintainability of the present petition but has also denied that there was any debt which was payable by the respondent-company to the petitioner. It has been stated that a sum of Rs. 4.50 lakhs was paid by a cheque dated March 29, 1996, in favour of the petitioner in full and final settlement as per the settlement entered into between the parties and the said amount has been credited to the account of the petitioner-company. A certificate from the bank has also been annexed in support of the said statement. It has been further alleged that the present petition has been engineered by the chartered accountants of the company ; namely, Mr. Rajesh Kumar and Ramesh Kumar and even the address of the petitioner is also the address of the residence of Rajesh Kumar, the chartered accountant of the company. The said chartered accountant was a relation of one Babu Lal Rastogi who was a shareholder in the respondent-company and was removed as a director of the respondent-company. The said Babu Lal Rastogi had preferred a petition under Sections 397 and 398 of the Act before the Company Law Board. The said proceedings were dismissed after the respondent-company purchased the shareholding of the said minority shareholder. Apart from the same, in the counter affidavit allegations of forgery and fabrication of the records of the petitioner-company have also been made. Inter alia, on the said allegations a prayer has been made for the company petition being dismissed at the admission stage itself. A rejoinder affidavit has been filed to the said counter affidavit in which the allegations of the petition have been reiterated and those made in the counter affidavit have been denied.;