Ashis Kumar Chakraborty, J. - (1.) The petitioner in this application has prayed for winding up of the company under Sections 433(e), 434 and 439 of the Companies Act, 1956 (in short "the Act of 1956").
(2.) It is the case of the petitioner that in terms of an agreement dated May 23, 2014 entered into between the parties, it advanced a loan of Rs.10 lakhs to the company, which was repayable on or before November 30, 2014 with interest at the rate 21%, per annum, compounded quarterly. A copy of the said agreement dated May 23, 2014 has been disclosed as Annexure-"C" to the petition. The said sum of Rs. 10 lakhs was paid by the petitioner to the company by RTGS ,through its bank account maintained with the IDBI Bank, Brabourne Road Branch, The petitioner has disclosed a copy of the relevant portion of its bank statement showing payment of Rs. 10 lakhs to the company through RTGS. Since the company did not repay the said sum of Rs. 10 lakhs as per the agreed terms, within November 30, 2014 by a letter dated December 04, 2014 the petitioner called upon the company to pay its dues under the said agreement. By a letter dated December 18, 2014 the petitioner acknowledged the receipt of the payment of Rs.10 lakhs under the said agreement dated May 23, 2014 and stated that it is trying its level best to repay the said amount, along with interest at the earliest. However, the company did not make any payment to the petitioner. By a notice dated May 05, 2015 issued under Section 434 of the Act of 1956 (hereinafter referred to as "the Act of 1956") the petitioner called upon the company to pay the principal amount of Rs. 10 lakhs, together with the agreed rate interest amounting to Rs. 12,12,815/-. By a letter dated May 26, 2015 the company, through its advocate, replied to the said notice dated May 05, 2015 disputing its liability to pay any money to the petitioner. In the said letter the company alleged that in the month of April, 2015 there was a change in its management and Sri Sanjay Kanoi and his relatives and associates, (hereinafter described as the "Kanoi Group") transferred their entire shareholding to Sailesh T. Desai and his relatives and associates (hereinafter described as " Desai Group") on the terms and conditions stated in the share purchase agreement. It was further alleged that under the said share purchase agreement, the Desai Group has not assumed the liability to pay off the alleged claim of the petitioner and the Kanoi Group was obliged to pay, satisfy and discharge the alleged claim of the petitioner. The company also alleged the petitioner to be a friendly creditor of the Kanoi Group, who in collusion and connivance with the petitioner have forged and fabricated the loan agreement and other letters and documents referred to in the said letter dated May 05, 2015 which are not available in its records. The company called upon the petitioner to furnish copies of the said loan agreement and other documents referred to in its said notice dated May 05, 2015. By a letter dated June 03, 2015 addressed to the company's advocate, the petitioner denied and disputed all the allegations made in the said letter of the company dated May 26, 2015. Thereafter, the petitioner filed the present application for winding up of the company.
(3.) The company contested the winding up application and filed its affidavit-in-opposition alleging that it was originally controlled by the Kanoi Group, where Sanjay Kanoi was a director and principal share holder. In terms of the share purchase agreement dated February 10, 2015 the Kanoi Group transferred their entire share holding to the Desai Group controlled by Sailesh T. Desai. As per the said share purchase agreement, December 14, 2014 was fixed as the cut off date and any liability of the company before such cut off date would belong to the Kanoi Group, who would keep the Desai Group indemnified from any liability arising over and above the assumed liabilities which extended to Rs. 70 crores. The company further alleged that before entering into the said share purchase agreement, the Kanoi Group did not inform the Desai Group of the loan agreement dated May 23, 2014 or receipt of any loan by the company from the petitioner. Further, no Board Resolution of the company is available in its records towards obtaining the said loan of Rs. 10 lakhs from the petitioner and said Loan Agreement dated May 23, 2014 has been brought into existence by the Kanoi Group by acting hand in glove with the petitioner to suit their personal benefits and the said agreement is a forged and fabricated document. It was alleged that the amount shown to have been transferred in the account of the company by the petitioner through RTGS is a fictitious liability created by the Kanoi Group and the petitioner in connivance with each other.;