Sanjib Banerjee, J. - (1.) THE petitioners seek winding up of the Company on its refusal to repay loans of combined value of Rs. 6,05,000 obtained between 1997 and 1999, allegedly acknowledged in 2000 and 2003 but not repaid despite issuance of the notice under Section 434(1)(a) of the Companies Act, 1956. The petitioners assert that they had made the money available to the Company in connection with the construction of a hospital by the Company in Siliguri and that the Company had agreed to pay interest at the rate of 24 per cent p.a. on such loan. The petitioners rely on a letter of 10 -10 -2000 said to have been issued by the Company and appearing to be signed by Dr. W.W. Chhang, the Chairman -cum -Director of the Company and the apparent admission of the Company found in the second and third paragraphs of such letter: Detail of the received cheques and cash are as follows: Sri Pawan Kumar Agarwal, Smt. Mina Devi Agarwal & Smt. Kalpana Agarwal Rs. 1,50,000, 2,50,000 and 1,00,000 vide Cheque Nos. E010760 CWN 49101 and CWN 49083 dated 19 -10 -1997, 23 -10 -1997 and 23 -10 -1997 drawn on Allahabad Bank and United Banks and Rs. 35,000 each vide cheque Nos. SB/Z 181631, CWN 49103 and CWN 49085 all dated 7 -4 -1999 drawn on Allahabad Bank and United Bank of Siliguri and Rs. 25,000 each in cash from Smt. Mina Devi Agarwal and Smt. Kalpana Agarwal - on 7 -4 -2000. At present due to development work in the Nursing Home, our company is not in the condition to repay the loan amount with interest. So our company hereby request you to further extend time to repay the said loan amount with interest within 3 (three) years from the date of this letter of acknowledgment of debt of our company.
(2.) THE petitioners also rely on cheques for Rs. 6,11,234 and Rs. 10,07,700 said to have been issued by the Company on 1 -3 -2003 and 3 -3 -2003 and bearing the same signatures as appearing on the letter of 10 -10 -2000. The writing of the date, payee and figures in both the cheques appear to be in the same hand and it is the petitioner's case that such cheques were not presented for payment on the Company's representation that it did not have adequate funds in its bank account at the relevant time. The petitioners next rely on a subsequent letter of September 15, 2003 said to have been issued by the Company wherein the loans appear to have been acknowledged. The second and third paragraphs of such subsequent letter read as follows: I am also very much grateful to you for not presenting the 2 (two) cheques, which were issued by me in favour of you. Sri Pawan Kumar Agarwal and Smt. Mina Devi Agarwal, amounting to Rs. 6,11,234 and 10,07,700, dated 1 -3 -2003 and 3 -3 -2003, cheque Nos. 407835 and 407839 drawn on SBI, Hill Cart Road, Main Branch, Siliguri, of our company, in your respective Bank account for encashment, on my request due to insufficient fund in the company bank account. By a resolution dated 10 -9 -2003 in a special general meeting our company further acknowledge the debt of Rs. 6,35,000 (Rupees Six Lakhs Thirty Five Thousand) and promised to pay the same with 24 per cent interest p.a. (compounded quarterly) at earliest possible. These two letters are the principal documents on which the petitioners found their claim. The petitioners also rely on a letter said to have been issued to the Chairman of the Company in March 2006 which was allegedly refused, but nothing turns on such letter.
(3.) IN the statutory notice of 28 -6 -2006 the petitioners narrated the circumstances in which they claim the loans were made and in Paragraphs (viii) and (x), the petitioners referred to the letters of 10 -3 -2000 and 9 -9 -2003. The petitioners also referred to special general meetings of the Company having been held on 7 -10 -2000 and 10 -9 -2003 pursuant to which the two letters were allegedly issued by the company. The cheques said to have been issued by the Company were also mentioned in the statutory notice. In the written response of 14 -7 -2006 the Company denied the petitioner's claim and alleged that the petitioners had been allotted shares of and in the Company against applications that the petitioners had made and the petitioner was aware of the allotments. It was asserted by the Company that by the year 2001 the three petitioners had been issued shares of phase value of Rs. 1,85,000. Rs. 3,10,000 and Rs. 1,60,000, respectively. The company's reply dealt with the specific paragraphs of the statutory notice but in dealing with paragraphs (viii) and (x) of the statutory notice, the Company's response is as follows: That the statements, allegations and claims made in paragraphs (vii) to (xiii) are whereby false, prevariated, and the same are knitted out of oblige motive to cause harrn to my clients (sic). The statements made in those paragraphs are vehemently denied.;