Ashis Kumar Chakraborty, J. - (1.) The Court : This is an application under Section 433(e) of the Companies Act, 1956 (in short "the Act of 1956"). The petitioner is a non-banking financial institution holding relevant registration certificate under the provisions of Section 45 1A of the Reserve Bank of India Act, 1934.
(2.) It is the case of the petitioner that in the year 2013, the company approached it and obtained financial accommodation of Rs.60 lakhs for a period of 121 days, commencing from July 17, 2013 at the agreed rate of interest at the rate of 12%, per annum. By a letter dated July 17,2013 the company acknowledged the receipt of the loan from the petitioner. In order to repay the said sum of Rs. 60 lakhs, together with the agreed rate of interest, the company issued post-dated cheques to the petitioner. Since the company was unable to repay the said amount of Rs.60 lakhs, together with the agreed rate of interest to the petitioner, the parties agreed to renew the said deposit of Rs.60 lakhs by the petitioner to the company for a further period of 475 days, that is, from May 14, 2014 to August 31, 2015 at the agreed rate of interest of 15%, per annum. By a letter dated September 7, 2014 addressed to the petitioner, the company confirmed the said renewal of the deposit for a further period of 475 days and issued two post-dated cheques for Rs.60 lakhs and Rs.10,54,110/-, respectively drawn on Deutsche Bank, in favour of the petitioner on account of the principal amount and the agreed rate of interest, respectively. However, upon expiry of the said period of 475 days when the petitioner presented the said cheques for encashment, through its bank, the same were were dishonoured on the ground of insufficient fund. On December 1, 2015, the petitioner issued a notice under Section 434 of the Act of 1956 to the company to repay the outstanding dues of Rs.73,95,617/-. The said notice was duly received by the company and by a letter dated December 22, 2015 the latter replied to the said notice. In its said letter the company did not dispute the receipt of the said sum of Rs.60 lakhs from the petitioner, but alleged that there was a subsequent agreement between the parties whereby the petitioner agreed to invest the loan amount in a property developed by the company at Kona,in the district of Howrah. In the said letter, the company further alleged that it has been holding various units at its said Kona property on account of the petitioner and it is also ready and willing to execute the necessary agreement for transfer of the flats continued to remain blocked for the petitioner. According to the petitioner, the allegations made in the said letter dated December 22, 2015 issued by the company is nothing but afterthoughts and the same have been looked up in as an desperate attempt to avoid the consequence of non-payment of the aforementioned admitted dues of the petitioner. In the affidavit-in-opposition, the company admitted the receipt of payment of Rs.60 lakhs from the petitioner as well as the authenticity of its letters dated July 17, 2013 and September 7, 2014 as well as the dishonour of the post-dated cheques of Rs.60 lakhs and Rs.10,54,110/-, respectively issued by them in favour of the petitioner. The company, however, alleged that there was an oral agreement between the parties whereby the petitioner agreed to convert the principal amount of Rs.60 lakhs being invested in the real estate project of the company which is coming up at Kona Expressway, namely, Avani Aspire Phase-II for adjusting the same with units of equal market value. On the basis of the said allegation, the company has prayed for rejection of the present application filed by the petitioner.
(3.) Mr. Jishnu Chowdhury, appearing for the petitioner, strenuously contended that when the company could not dispute its own letters dated July 17, 2013 and September 7, 2014 acknowledging its liability to repay the said amount of Rs.60 lakhs together with the agreed rate of interest of 15% per annum, as well as the dishonour of the two cheques for the total amount of Rs.70,54,110/- on the ground of "insufficient funds", evidently showing its inability to pay the dues of the petitioner, the company has mala fide built up a story of an alleged oral agreement between the parties for adjustment of the entire amount of Rs.70,54,110/- against flat of the proposed building Avani Aspire Phase-II, at Kona. According to the petitioner, the defence sought to be made out by the respondent in this case against the claim of the petitioner lacks bona fide and it is a fit case where the company's financial incapability to repay the dues of the petitioner is proved beyond any doubt. Thus, it is submitted on behalf of the petitioner that this Court would admit the present winding up application against the company.;