- (1.) The winding up petition was filed before the Company Court by the Respondent, the petitioning creditor, as he claimed that the appellant/company had failed to discharge a debt for a sum of 1.52 crores. He claimed that he had loaned an amount of 2 crores to the company which he had paid by cheque. In reply to the statutory notice, the company denied that it had taken a loan from the petitioning creditor and contended that the question of repayment of any amount to him did not arise. Out of this, Rs.48 lacs was refunded.
(2.) Mr. Abhrajit Mitra, the learned Counsel for the appellant/company, submits that the amount of 2 crores was in fact paid to the company as part of the consideration payable by the Respondent for the agreement of sale of land executed between the sister concern of the appellant/company and the Respondent. According to him, certain amounts were paid to the appellant/company, Pragma Buildtech Pvt. Ltd. and to Vigneshwara Properties Pvt. Ltd. which are sister concerns having common Directors and shareholders. The learned Counsel submits that it was later found that the stamp duty paid was in excess as the area of the land mentioned in the deed was erroneous. The learned Counsel further submits that since the amount of 2 crores has been paid by cheque by the Respondent to the appellant/company, it must be presumed in law that it was for the discharge of a debt or liability unless contrary is proved. The learned Counsel fortifies this submission by relying on the judgment in the case of Maruti Udyog Ltd. vs. Narender & Ors . reported in (1999) 1 SCC 113.
(3.) The learned Counsel further submits that although the learned Company Court has referred to several judgments of this Court as well as of the Supreme Court on the law propounded by the Courts for admission of a winding up petition, the learned Judge has ignored these principles and has admitted the petition although the company is not in a completely defenceless position.;