- (1.) The substance of the claim in both petitions is the same, only the petitioners and the details are different. The parties have submitted that a judgment on the one will cover the other matter. The claim in either case is on account of alleged inter-corporate deposits made by the petitioner with the common company and the alleged failure of the company to repay the same. The details in this judgment are those covered by CP No. 316 of 2008. In addition to the affidavit-in-opposition and affidavit-in-reply filed in either case, the petitioner obtained leave to use a supplementary affidavit. The company was permitted to use a rejoinder, but the rejoinder was to be limited to the statements contained in the supplementary affidavit filed by the petitioner. The order dated February 1, 2010 did not permit the company to include any material beyond dealing with the supplementary affidavit and enclosing copies of documents referred to in the opposition.
(2.) The petitioner in CP No. 316 of 2008 claims that inter-corporate deposits were made during the financial year 2006-07 of a total amount of Rs.4.18 crore. The petitioner suggests that the deposits were to carry interest at the rate of 10 per cent per annum. The singular feature of the claim in either case is that there was no document exchanged between the parties at the time that the alleged inter-corporate deposits were made and there is no written agreement as to interest or the quantum thereof. The petition in either case contains only the statutory notice as the annexure thereto. In either case the company did not respond to the statutory notice despite due receipt thereof. It is such fact that the petitioner in either case cites in asserting the claim and insisting that upon the company failing to reply to the statutory notice the presumption under Section 434 of the Companies Act, 1956 had inarguably arisen in favour of the petitioner. In the affidavit, the company has denied the claim. The stand taken by the company at paragraph 6 of the affidavit is that there was a "concurrent transaction" in every case. The company sought leave to produce the relevant bank accounts to demonstrate such "concurrent transactions." The company says that it has disclosed the bank accounts in the rejoinder to the supplementary affidavit and it would be evident from the bank transactions that almost simultaneously with the receipt of every payment from the petitioner, the company had passed on the equivalent amount to another entity. In the case of a solitary transaction, the company has sought to demonstrate that shortly after it received the payment from the petitioner, it passed it on to concerns by the names of Computech and Compact Disc India which, in turn, made payment to Mrigiya Electronic Industries Pvt. Ltd, which, according to the company, is a concern owned, managed and controlled by the same persons who are in management of the petitioner company. The essence of the company's defence is that the payments shown to have been received by the company from the petitioner were mere book entries and the monies were never retained by the company but rolled out almost simultaneously to other entities. The company has denied that the transaction was one of inter-corporate deposits made by the petitioner or that the company was liable to pay any interest.
(3.) Before the other arguments made on behalf of the parties are taken up it is necessary that the circumstances in which the transaction came to be executed as asserted by the petitioner and the company be noticed. The relevant extracts from paragraph 6 of the petition and paragraph 6 of the company's affidavit bring out the conflicting positions: "6. In or about June, 2006, the Company acting through the instrumentality of its Director Mr. Santanu Ghosh and Smt. Mamta Binani, a practicing Company Secretary of No. 2A, Ganesh Chandra Avenue, Commerce House, Room No. 6, 4th Floor, Kolkata approached the petitioner acting through the instrumentality of its Director Mr. Mahesh Kedia for Inter Corporate Deposit (hereinafter referred to as "ICD") of sums not exceeding Rs.5,00,00,000/- (Rupees five crores) only to be given in such sum or sums of money having regard to the Company's exigency of business and on representation that such borrowing by the Company is within the provisions of Section 293(1)(d) of the Companies Act, 1956 whereupon it was orally agreed by and between the parties hereto that the petitioner will arrange and make Inter Corporate deposit (hereinafter referred to as "ICD") for Company sums not exceeding Rs.5,00,00,000/- (Rupees five crores) only to be given in such sum or sums of money having regard to the Company's exigency of business and carrying interest @ 10% per annum." (Paragraph 6 of the petition) "6. __The entire transaction was arranged by and at the instance of Mamta Binani, who is associated both with the petitioner and the company as also various other concerns including Ujjwal Trafin Pvt. Ltd., Computech and Compact Disc India and had caused several transactions including once referred to in the instant petition to be entered into by and between the said parties and the company. ... The company shall crave reference to its own bank's statements to evidence concurrent transactions between the company and the petitioner, Ujjwal Trafin Pvt. Limited, Computech and Compact Disc India, which will clearly show that in any event, no sums were liable to be repaid by the company to the petitioner." (From paragraph 6 of the affidavit-in-opposition);