- (1.) Both the appeals are taken out against one and common judgment of the learned company judge dated April 1, 2010 (Xenitis Infotech P. Ltd. v. Swarna Sathi Dealers P. Ltd., 2010 155 CompCas 330), by which the appellants' winding up petitions have been permanently stayed, holding in both the matters the companies have been able to make out bona fide dispute for rendering decision in civil suit in relation to loan transaction. The fact in both the cases are identical, however, the figures of the claims and payment dates are different, therefore the common back ground case made out in both the petitions are stated hereunder : Both the petitioning-creditors/appellants pursuant to and in terms of the oral agreement lent and advanced substantial amounts to the respondent-company. A sum of Rs. 2,15,50,000 was advanced by the appellant in the first mentioned appeal (hereinafter referred to as "the first appeal"), whereas a sum of Rs. 4,18,00,000 was advanced by the appellant in the second mentioned appeal (hereinafter referred to as "the second appeal") to the company. The appellant in the first appeal lent the aforesaid sum of Rs. 2,15,50,000 on various dates between June 29, 2006 to July 19, 2006. The said payments were made by twelve account-payee-cheques and the same were admittedly encashed. In case of the second appeal the aforesaid payments were made by the appellant/petitioning creditor between June 19, 2006 and November 7, 2006, on diverse dates by thirty several cheques and the same were duly encashed and appropriated. In spite of repeated demands and requests the company did not repay or secure the said sum of Rs. 2,15,50,000 to the appellant in the first appeal as such the said appellant is entitled to claim repayment of the amount of loan and interest at the rate of 10 per cent, per annum thus an aggregate sum of Rs. 2,60,11,250 have become due and payable. As far as the second appeal is concerned a sum of Rs. 10,00,000 was paid by the company by way of part repayment by account payee cheque on May 12, 2008. Thus after adjusting the said part payment there has been due and owing an aggregate sum of Rs. 4,93,30,833 together with interest at the rate of 10 per cent, per annum. The statutory notices in respect of the two matters were duly served, demanding payment failing which threatening to initiate winding up proceedings under section 434 of the Companies Act, 1956. Despite receipt of the notices the company did not pay nor secure the said amount or any portion thereof to both the appellants/petitioning-creditors.
(2.) Affidavit in oppositions were filed before the learned trial judge. Common defence was taken by the company as against two separate claims and contentions made in two winding up proceedings.
(3.) As far as the first appeal is concerned the substance of defence taken, is stated hereunder : The petitioning creditor has suppressed from this hon'ble court a letter dated March 26, 2007, issued by and on behalf of the petitioning creditor therein it has been instructed by the petitioning creditor to the company that the payment made earlier, of Rs. 2,15,50,000 need not be repaid and this amount should be transferred in its entirety to M/s. Gajra Impex and Credit P. Ltd., No. 57, Jawharlal Nehru Road, Kolkata-700 071. By a subsequent letter the petitioning-creditor/appellant has confirmed that the said amount has been received back and there has been no dues payable to the said petitioning creditor. In view of the aforesaid instruction the company has paid the said amount to the Gajra and as such there cannot be any failure or neglect to pay the amount. Moreover it is stated that the company has very sound financial health that would be reflected from its balance-sheet. The company is making huge profits and also having substantial assets. Similar and identical defence has been taken in the second appeal in the affidavit opposing winding up petition. It has been stated therein that by letter dated March 26, 2007, the petitioning creditor instructed the company to transfer the said outstanding amount of Rs. 4,03,00,000 to M/s. Clarion Overseas P. Ltd., No. 57, Jawharlal Nehru Road, Kolkata-700 071 and by a subsequent letter it has been confirmed by the appellant/petitioning creditor that there has been no dues. These two companies are really alter ego of both the petitioning-creditors/appellants.;