I.P.MUKERJI,J. - (1.) This is a winding up application at the admission stage. This is the second round. On 4th February, 2016, Mr. Justice Somadder had admitted the winding up application. This order was set aside by the Division Bench presided over by Mr. Justice Sanjib Banerjee, on 10th April, 2017, on the ground that no opportunity had been given to the respondent company to file an affidavit-in-opposition. In those circumstances, the company petition was heard by this Court.
(2.) The claim of the petitioning creditor arises out of a mortgage-cum-loan agreement dated 22nd May, 2013 between Mr. Subrata Indu and the petitioning creditor. In furtherance of this agreement, the title deeds of a property belonging to Mr. Indu, one of the directors of the Company, was deposited with the petitioning creditor. From 22nd May, 2013, till 18th August, 2013 periodically sums were lent and advanced by the petitioning creditor to the company. Some amounts were also repaid. The interest payable on the loan was at the rate of 18% per annum. On 21st September, 2015, the petitioning creditor caused to be issued a statutory notice to the respondent company claiming Rs. 64,50,000/- on account of principal and Rs. 25,84,035/- on account of interest till 31st August, 2015. The respondent company did not reply to the statutory notice.
(3.) Learned Counsel for the petitioner showed me a balance sheet of the company where this loan was shown as part of the company's short term borrowings, under current liabilities. Placing these facts Mr. Suman Dutta, learned senior Counsel appearing for the petitioner submitted that the respondent company had no defence whatsoever to the claim of the petitioning creditor. Mr. Mukherjee for the respondent Company argued that if one perused the agreement dated 22nd May, 2013, one would notice that it was between Sukumar Indu describing himself as a borrower and the petitioning creditor. The loan was against mortgage of the borrower's individual property. Therefore, the company had no liability thereunder. Secondly, he said that the debt was a secured one by mortgage of the said property. The petitioning creditor had the alternative remedy of realizing the secured debt through a civil action by sale of the property. ;