SANJIB BANERJEE, J. - (1.) THE petitioner cites the company's failure to return a loan as the ground to hold that the company is unable to pay its debts and liable to be wound up.
(2.) A total sum of Rs. 86,91,000 according to the petitioner, was made available to the company between February 13, 2002 and March 31, 2004. Of this, the company repaid a sum of Rs. 5,49,400 leaving an unpaid balance principal of Rs. 81,41,600. The petitioner sought refund of such sum together with interest thereon at the rate of 15 per cent, per annum by its statutory notice of September 20, 2004. The company's response to such demand and the subsequent stand taken in the affidavit filed in these proceedings is, by and large, the same. It alleges that one Harsh Bajoria was the principal person in control of the company prior to the present management taking over and that such Bajoria had shown payments being made to the company from entities under his ultimate control without the company having received any benefit against such payments. Such Bajoria is also alleged to be at the helm of the petitioner, whether directly or through persons accustomed to obey his dictates. There is no agreement in writing that is relied upon by the petitioner. There is no demand made by the petitioner prior to the statutory notice. There is no acknowledgment of indebtedness by the company or even any writing where the transaction has been referred to in passing. The petitioner relies on a statement that it furnishes; its demand contained in the statutory notice ; and, what it claims to be, the baseless denial of the company's liability in the response of October 5, 2004. The petitioner suggests that even though there are no documents in support of the transaction that it claims, there is no denial by the company of having received the funds. It is submitted that even if a petitioning creditor is required to affirmatively establish its claim on the basis of the papers appended to its petition, once an affidavit is used by the company, the defence put forth is required to be tested and the petitioner's entitlement to the money claimed is to be weighed against the plausibility of such defence rather than the unimpeachable character of the documents relied upon by the alleged creditor. In a sense, the petitioner asserts that upon a company not using an affidavit to a winding up petition, it is the petitioner's case that calls for closer scrutiny than when an affidavit is used; upon the company disclosing its defence in its affidavit, it is such defence that needs to be examined without the petitioner being put to such strict proof of its case.
(3.) IN the statement of accounts forming part of the petition, it is shown that a sum of Rs. 5 lakhs made available during the last month and a half of the financial year ended 2001 -02 was repaid by the company within the first three weeks of the following financial year. It is the balance sum, claimed to have been made available by the petitioner to the company between August 26, 2002 and March 31, 2004, that is the subject -matter of the petitioner's claim. In the petition a sum of Rs. 49,400 is shown to have been refunded on account of the principal during the financial year 2004 -05. On such scanty material as its own statement, statutory notice and the company's response thereto, the petitioner found its claim to wind up the company. It is the more substantial affidavit filed by the company that the petitioner pounces upon to establish its case by almost discarding the petition. The petitioner relies on the accounts found at pages 79 and 80 of the company's affidavit to suggest that in the labyrinth of denials issued by the company and the wave of extraneous materials alluded to, the two page accounts substantiate the petitioner's claim. The petitioner submits that upon the kernel being sifted from the husk, what appears in the accounts is that moneys obtained by the company from one set of concerns said to be controlled by the petitioner's mentor were repaid by moneys obtained from another set of the petitioner's associates and finally from a third set of companies also controlled by Bajoria. It is argued that if money is taken from B to repay A and a subsequent loan is taken from C to repay B, the loan from C would remain outstanding and the petitioner is in the position of C.;