N.K.Batabyal, J. - (1.) The Company, Associated Design Planning Group Private Ltd., incorporated under the Companies Act, 1956 and having its Registered Office at 99/5/5, Ballygunge Place, Calcutta has a nominal capital of Rs. 1,00,000.00. The Company was established for the following objects : (a) To carry on the business of consultancy, services for Architectural, Planning, interior design and also to carry on the business of civil/structural, mechanical, electrical, environmental engineering/ consultancy services; (b) To acquire by purchase, lease or otherwise, land, building estate or any such property for any tenure and develop construct or reconstruct, alter improve, decorate, furnish equip and maintain as any of the abovementioned business or establishment or shop, warehouses etc; (c) To lend money to such persons upon such terms and subject to such conditions as may seem expedient, not amounting to Banking; (d) To enter into any arrangement with any Government, or authority supreme, municipal local or otherwise and to obtain from any such Government or authority any rights, concessions for obtaining applications for or taking, placing debentures, securities or obligations.
(2.) In or about September 1990 the Company undertook to prepare a Plan, have the same sanction and then construct on behalf of the petitioner a residential three-storied building at 8A, Dover Road, Calcutta at an estimated costs of Rs. 5 lakhs on the basis of discussions made by and between the petitioner and the Company as represented by its Managing Director, Mr. Biswanath Chakravorty. The Company indicated a disbursement schedule for the payment to the petitioner. The schedule has been annexed to the petition and marked to the letter "A". For preparation of the plan and for having the same sanctioned from the Municipal Authorities, it was agreed that the petitioner would have to pay a sum of Rs. 30,000/-on the basis of the estimates given by the Company, the petitioner in several installments advanced a total sum of Rs. 3,72,540/-to the Company as per instructions of the Managing Director. The details of the payments have been annexed with the petition and marked with letter "B". By a letter dated 28th March, 1991, the Company through the Managing Director sent drawings for signature of the petitioner and requested the petitioner to pay a sum of Rs. 4,000/- in cash. That letter has been annexed with the petition and marked as Annexure "D". The request was complied with. By a letter dated 28th May, 1992, the Company sent to the petitioner three copies of drawings of the residential building proposed for signature and three more copies were assured to be sent by the next date. The drawings were to be signed by the petitioner as an owner of the property before filing of the same. A copy of the letter dated 28th May, 1992 has been annexed with the petition and marked as letter "E". The petitioner was given to understand by the Company that the Plan was under preparation and would be presented to the proper authorities for sanction. Subsequently, he was given to understand that the Plan had been prepared and submitted for sanction. Necessary fees for the sanction were paid by the petitioner. Ultimately, it transpired in June/July, 1992 that the Company had taken no step whatsoever for obtaining sanction of the proposed Plan from the Calcutta Municipal Corporation and no copy of the Plan had been submitted for sanction. Since the Company was incapable of proceeding in the matter, the petitioner took back the Plan for sanction through separate agency after necessary modifications. Since the Company was incapable of proceeding in the matter, it agreed to repay the amounts received from the petitioner agreegating to Re. 3,72,540/- and as a matter of fact a sum of Rs. 1,71,000/- was repaid thereby reducing the liability to Rs. 2,47,000/- and odd. On December 17, 1992 the Company issued a cheque on Allahabad Bank, Park Street Branch, Calcutta for a sum of Rs. 81,000/- but the said cheque on presentation was dishonoured on the ground of 'insufficient fund'. The petitioner applied to the company for payment of the balance amount as a debt by a Notice of Demand dated 13th January, 1993 which was served upon the Company on 20th January, 1993 by Registered Post. But the Company failed and neglected to pay the amount so demanded. A copy of the said Notice dated 13th January, 1993 has been annexed with the petition and marked "F".
(3.) By a letter dated 25th January/1st February, 1993 the Company replied to the said letter of demand stating that the Books of Account of the Company did ot show any money being received from the petitioner and that the job was not registered in the job list of the Company. Along with the said letter a statement of the Managing Director of the Company was annexed which, inter alia, stated that the petitioner did not engage the Company for the job. The copy of the said letter dated 25th January/1st February, 1993 is annexed with the petition and marked "G".;