Sanjib Banerjee, J. - (1.) THIS creditor's winding -up petition was permanently stayed by an order of December 5, 2011 on the ground that an essential condition for receiving the payment from the company appeared not to have been complied with by the petitioning creditor. The petitioner thereafter sought a review of the order by which the petition was declined to be admitted, but the review failed on the ground that the petitioner had not demonstrated that despite exercise of best diligence the petitioner could not produce the relevant documents at the time that the order dated December 5, 2011 was passed. Appeals were carried from both the order declining to admit the winding -up petition and the one dismissing the review application. The Appellate Court agreed with the views expressed in both the orders, but afforded the petitioning creditor an opportunity to present its best documents for a reconsideration of the claim. Hence the present hearing. The petitioning creditor has used a supplementary affidavit disclosing certain additional documents. The veracity of the additional documents appended to the petitioner's supplementary affidavit has not been questioned by the company.
(2.) THE claim of the petitioning creditor is on account of money due under an agreement. According to the petitioner, a piece of land belonging to the directors of the petitioner company was conveyed to the company under an agreement. The petitioner claims that a sum of about Rs. 1.45 lakh payable in terms of a memorandum of understanding dated September 21, 2010 remains due. The petitioner says that it has duly discharged all its obligations in terms of the memorandum of understanding and the land has also been conveyed by the directors of the petitioner in favour of the company. That the land has been conveyed to the company is also not in dispute. The order dated December 5, 2011 recorded a solitary objection raised on behalf of the company. The company had submitted then that the first clause of the memorandum of understanding obliged the petitioner to furnish a no -dues certificate from the West Bengal State Electricity Distribution Company Limited for the petitioner to be entitled to the sum of Rs. 1.45 lakh. Indeed, the relevant clause provides for the no -dues certificate to be furnished for the petitioner to be entitled to the sum of Rs. 1.45 lakh.
(3.) THE petitioner says that the sum of Rs. 1.45 lakh due under the memorandum was paid on behalf of the company by a sister concern by way of a cheque but the cheque was dishonoured upon presentation. The petitioner suggests that since the sister concern had only tendered the payment on behalf of the company concerned, the petitioner's claim against the company remains. When the petition was taken up for hearing on December 5, 2011, the petitioner could not demonstrate that any no -dues certificate had been issued by the electricity company. Though the petitioner sought to rely on some document, the Court did not permit any new document to be sprung on the company at the hearing. The petition was not admitted because the petitioner could not conclusively demonstrate -though it was required to do so in a matter of this kind and where the claim is assessed on affidavit evidence -that it was entitled to the payment that it claimed. The review petition was dismissed since it appeared that the relevant document was in the possession of the petitioner but it had been carelessly -not despite due diligence -not appended to the papers filed by the petitioner in Court.;