SURINDER SINGH NIJJAR, C.J. - (1.) THIS judgment will dispose of Appeal Nos. 277 of 2007 and 299 of 2007 as both the appeals are directed against the common judgment dated April 20, 2007 in Company Petition No. 531 of 2005 (Star Textiles and Industries Ltd. v. Olive Tea Plantations P. Ltd. (No. 1) [2009] 149 Comp Cas 68 (Cal)). For the purposes of this judgment we shall make reference to the facts as pleaded in Appeal No. 277 of 2007.
(2.) THE company petition had been filed on the allegations that the company is indebted to the appellant in a sum of Rs. 1,15,59,525.86 along with further interest. It is alleged that initially in February, 2002 a short term temporary accommodation loan of Rs. 5,00,000 had been provided to the company. The company had agreed to pay interest at the rate of 15 per cent, per annum. Thereafter, on a request made by the company a further sum of Rs. 86,91,000 was paid on February, 2002, as temporary accommodation. A sum of Rs. 5,49,400 was repaid by the company on April 24, 2002. Thereafter, on August 26, 2002 a further payment of Rs. 70,000 was made to the company again as temporary accommodation loan. Over a period of time the company requested for further amounts as temporary accommodation loan which were accepted by the appellant. Consequently, between January 3, 2003 and October 17, 2003, the appellant had paid various amounts of money from time to time to the tune of Rs. 81,91,000. From time to time the company made part payments of small sums of money amounting to Rs. 49,400. Therefore, on the date of presentation of the winding up petition the outstanding was of Rs. 81,41,600. On the aforesaid amount the company was liable to pay interest in the sum of Rs. 34,17,925.86 till November 19, 2005, at the rate of 15 per cent, per annum as agreed by and between the parties. The appellant has failed to repay the aforesaid amount in spite of repeated requests, reminders and personal follow ups by the representatives of the appellant. The appellant called upon the company to make payment of the unpaid amount of temporary accommodation loan through a letter dated September 20, 2004, written by the advocates of the appellant. At the end of the letter it was mentioned that the same be also treated as a notice under Section 434 of the Companies Act, 1956. On October 5, 2004, the company through its advocates denied the liability. According to the appellant the company had raised a baseless defence, creating an irrelevant and imaginary story. The appellant gave a reply to the company through its advocate on record on November 19, 2004. Since, in spite of repeated requests the company has failed to pay the amount due, it would be presumed that it is unable to pay its debts. Thus, a prayer has been made that the company be wound up under the provisions of the Companies Act, 1956.
(3.) THE company in its reply to the statutory notice had pleaded an elaborate defence to the claim made by the petitioner. The company has stated that the background of the matter is such that Mr. Harsh Bajoria who manages and controls various companies including looking after the affairs of the petitioner had on false representations induced Mr. Mohan Kumar More, father of Mr. Aditya More, who is a director of the company to develop a tea garden jointly. According to the company, Mr. Harsh Bajoria had defrauded the company to the tune of Rs. 3,54,50,000. After setting out the details of the alleged fraud committed by Mr. Harsh Bajoria, the company claims that he was in complete control of the company and was also looking after the development of the tea estate belonging to the company. He had extracted huge amounts of money from Mohan Kumar More, Mr. Aditya More, Mrs. Lily More and their family members for the ostensible reason of developing the tea garden. Ultimately, when Mores were unable to loan any further amount, Mr. Harsh Bajoria persuaded Mr. More and its family members to take a loan from the Central Bank of India. It is categorically stated that the loan amount, which was taken from Central Bank of India, was all disbursed to the companies controlled and managed by Mr. Harsh Bajoria. In the meantime Mr. Harsh Bajoria had also opened a number of bank' accounts in the name of the company with various banks which were not reflected in the books of the company nor were the same disclosed to the More family. This was allegedly done by Mr. Harsh Bajoria for adjustment of the profits of his other companies to evade tax and to play a fraud on the authorities concerned. It is also stated that Mr. Harsh Bajoria was trying to launder his money through the company's accounts which were opened, maintained and operated by Mr. Harsh Bajoria, his son, Mr. Shalakia Bajoria and his other employees. Mr. Harsh Bajoria did not even stop at this. He had even passed journal entries between the other companies managed and controlled by him and the company so as to create a huge debt in the books of the company. This was done, so that Harsh Bajoria could siphon off the money from the companies owned and controlled by him. When the true state of affairs of the company came to the notice of the appellant, Mr. Harsh Bajoria was informed that, in view of the grave situation the company may be constrained to initiate legal proceedings against him. It is also the case of the company that the claim made by the appellant is a part of the money syphoned off fraudulently by Bajoria. The amounts taken from the appellants had been used for payment to Fastrack Real Estate (Rs. 56,80,000) and Mitsubishi (Rs. 22,90,000). All the three companies namely, the appellant, Fastrack and Mitsubishi belong to Harsh Bajoria or by persons who were directly under his control. It is stated that there is no debtor or creditor relationship between the appellant and the company. Transactions are just manipulations which have been created by Harsh Bajoria to defraud the company. The company therefore demanded that the amounts which have been fraudulently misappropriated from the books of the company be returned, failing which legal steps may be taken. The aforesaid defence in the notice is reiterated in the afhdavit -in -oppo -sition to winding up petition. In addition it is stated that the company has filed Civil Suit No. 316 of 2004 in this Court claiming a decree in the sum of Rs. 3,54,50,000 against the appellant and other defendants. The company also seeks a declaration that no money is due or payable by the company to defendants Nos. 8 to 14. We may notice here that appellant is impleaded as defendant No. 8 in the civil suit. The company also seeks a declaration that no money is due or payable to defendant No. 7 and in the alternative if at all any amount is due or payable mandatory injunction directing defendants Nos. 1 and 6 to make such payment to defendant No. 7. The company has also prayed for a perpetual injunction restraining the appellant and the other defendants from interfering with the management, control and affairs of the company. Interim relief is also sought for payment of interim interest on judgment at the rate of 24 per cent, per annum, payment of receiver and grant of interim injunction.;