JUSTICE SOUMEN SEN, J. - (1.) The petitioner was originally known as Royal Exchange Textiles Pvt. Ltd. The petitioner was a NBFC. It is alleged that the respondent till sometimes around 6th June, 2014 was under the same management as that of the petitioner and thereafter the management of the respondent had changed and at present Amit Parekh and Rajesh Meheta are in control of the respondent. At the time when the respondent was under the same management as that of the petitioner about 6% of the shares of the respondent was held by Mr. Rajesh Meheta. The respondent required funds for the purpose of construction, development of a property at Uday Shankar Sarani and the petitioner alleged to have lent and advanced funds to enable the respondents to make construction. The petitioner alleged that after reconciliation of all accounts as on date a sum of Rs.40,28,409/- is due and payable by the respondents to the petitioner. The petitioner has referred to few letters to show that the petitioner has demanded payment of such sums and the respondents, on 1st April, 2016, have confirmed and acknowledged that a sum of Rs.40,28,409/- is due and payable under the said loan agreement. The petitioner has filed this application on the basis of such balance confirmation.
(2.) The respondents have filed an affidavit-in-opposition. In the said affidavit the respondents have given a brief history of the respondent company. The affidavit says that the initial promoters and directors of the respondents were S.D. Agarwal, Priti Agarwal, Ram Kumar Kedia, Rajesh Kumar Kedia and Arun Kumar Kedia who had resigned from the respondent company. The said company was controlled and managed by G.S. Agarwal, Vikash Agarwal and Rajesh Meheta till they resigned in April, 2014. On April, 2014 Rajesh, G.S. Agarwal and Vikash had agreed that G.S. and Vikash would resign from the director of the respondent company and transfer their shareholdings in favour of Rahjesh and Amit Parekh. In consideration thereof, a sum of Rs.79 lakhs has been paid by the respondent company to the petitioner in full and final settlement of all claims of the petitioner as against the respondent and/or Rajesh and Amit. The said sum has been paid by the respondent company by mortgaging its two flats on the 4th and 5th floor of Uday Shankar Sarani, Kolkata with HDB Financial Services Ltd. A further sum of Rs.19,47,880/- had been paid by Rajesh and Amit to the Agarwals in lieu of the shares held by them in the respondent company. The respondents have disclosed the particulars of payment and the relevant share transfer forms executed by the transferors. It is alleged that the aforesaid sums have been paid by the respondent company and Rajesh and Amit to the petitioner and/or to Agarwals in full and final settlement of their claim against the respondent company and/or Rajesh and Amit. The defendant did not acknowledge any loan being availed of from the petitioner and it is contended that at the highest it may be treated as an inter-corporate transfer. In paragraph 5 the respondent has explained the nature of payment and has also disputed certain entries. For example, it is contended that the entry showing payment of Rs.22,50,000/- as appearing in the statement being Annexure-D to the application is incorrect as it would appear from the purported balance confirmation appearing at page 27 of the application that the amount disbursed was Rs.2.50 lakh and not Rs.22.50 lakh.
(3.) On a reading of the affidavit-in-opposition it appears that the main defence of the respondent appears to be that there are certain book entries and inter-corporate transfer in lieu of transfer of shares and change of control and management of the companies. In paragraph 8 the respondent has categorically stated that all transactions between the respondent and the petitioner pertains to the period when G.S. Agarwal and Vikash Agarwal were the directors of both the companies and in control and management of the same. The funds have been transferred at their direction and/or instructions inter se the two companies. G.S. tendered his resignation from the respondent company on 18th April, 2014 and Vikash resigned as a director of the respondent company on 22nd April, 2014 and requisite form TIR-12 has been filed with the Registrar of Companies. It is a clear denial of any amount being advanced by the petitioner as loan to the respondents. On a reading of the said affidavit-in-opposition it appears that the respondent is able to make out a triable issue and, in my view, the respondent may be allowed to file a written statement.;