Salil Kumar Roy Chowdhury, J. - (1.) This is an application for the winding up of the company under Sections 433, 434 and 439 of the Companies Act, 1956.
(2.) This petition has a chequered career as the winding-up petitioner was presented on 10th June, 1970, and the same was admitted on 16th June, 1970, and fixed for hearing on 29th June. 1970.
(3.) The claim of the petitioning creditor arises out of money lent and advanced for the purpose of the business of the company being a sum of Rs. 3,00,000 and the repayment of the said loan and interest was secured by a second charge created on the assets of the company by a registered mortgage and at the time of filing of the winding-lip petition the claim was Rs. 3,99,936.09 inclusive of interest up to 31st December, 1969, parti culars of which are set out in para. 8. It appears that the company in its balance-sheets for the years 1961-67 duly acknowledged its liability to the petitioning-creditor company and also by a letter dated 21st June, 1968, the company confirmed and acknowledged its liability to the peti tioning-creditor company in writing for a sum of Rs. 3,88,174.03 as on 31st December, 1967. As the company failed and neglected to pay the loan together with interest to the petitioning-creditor company, Ulti mately a statutory notice under Section 434 of the Companies Act, 1956, dated 12th/13th March, 1970, was served by the petitioning-creditor company on the company at its registered office on 16th March, 1970, by the advocate-on-record of the petitioning-creditor company. The company strangely enough by its letter dated 8th April, 1970, replied to the statu tory notice alleging that there did not appear to be any such transaction between the company and the petitioning-creditor in the records of the company. The petitioning-creditor by its letter through its advocate-on record dated 30th April, 1970, denied the allegations in the said reply to the statutory notice of the" company, asserting the liability of the company to the petitioning-creditor and alleged that the said allegations of the company in the letter dated 8th April, .1970, were incorrect and untrue as the said loan was a running loan from year to year and duly shown in the balance-sheets of the company as hereinbefore stated and the company was confirming the liability to the petitioning-creditor up to the year 31st December, 1967. It also appears that the said letter dated 8th April, 1970, by which the company denied the claim of the petition ing-creditor which was demanded by the statutory notice was signed by one of the then directors of the company being Mr. S.N. Sarogee, who was himself a signatory to the balance-sheet for the year ending 31st December, 1967, which was signed on 25th June, 1968, and the auditors report on the said balance-sheet was signed on 3rd June, 1968, where the auditors have observed that in their opinion the papers, books of account, etc., have been kept by the company as required by law as appeared to them from the examination of those books. Thereafter, it appears that by an affidavit affirmed on 27th July, 1970, the said S.N. Sarogee, as a director of the company, filed an affidavit-in-opposition, inter alia, alleging that the petitioning-creditor had not alleged as to when the said sum of Rs. 3,00,000 was lent and advanced to the company and the deeds of mortgage referred to in the winding-up petition was not annexed to the winding-up petition and called upon the petitioning-creditor to produce the said deed of mortgage and it was further alleged that the petitioning-creditor company and the company along with several other companies were under the same management of which M/s. Goenka & Co., was the managing agent which was,controlled by Chirimars and the directors of the -petitioning-creditor company and the defendant company and other companies were under the same management and had common directors and purported to show various loans and advances by Goenka Commercial Bank Ltd. to the said several companies and they were fraudulently shown to be such loans to the company although in fact no such sum was actually lent or advanced. Thereafter, the Goenka Commercial Bank Ltd. was prohibited from carrying on banking business and by an order of this court on 17th May, 1970, the Goenka Commercial Bank Ltd. was directed: to be wound up. The petitioning-creditor company as the, successor-in-interest of the said Goenka Commercial Bank Ltd. after taking several steps for reviving the business of the company and changing its name. It was alsp alleged by the said S. N. Sarogee. that the said Chirimars directors having; lost their control over the respondent company and other companies, were now. seeking to put, pressure on the company and extort money from the company and the company bona fide disputed the claim of the petitioning-creditor. The letter of confirmation dated 21st June, 1968, by the company in favour of the petitioning-creditor which was signed by S.N. Sarogee as a director was denied and disputed and it is alleged that the same was written for income-tax purposes as a result of fraud practiced upon the company and, therefore, the said letter did not amount to a letter of acknowledgment and confirmation of the liability of the company to the petitioning-creditor. It was further alleged that the Chirimars and their group were acting in collusion and conspiracy with others, and have procured and manipulated various documents including the said letter dated 21st June, 1968, for the purpose of creating evidence in favour of the petitioning-creditor. It was alleged that, until 15th March, 1968, the company was managed by Chirimars and particularly by one Dhanoolal Chirimar and Purusatyam Das Ghirimar. In substance, the dispute was that the loan was fictitious and the documents were brought into existence by the Chirimars to foist the liability on the company wrongfully and fraudulently and it was submitted that the petition was lacking in material particulars and as such demurrable and the application was mala fide and misconceived and was a gross abuse of the process of the court.;