Salil K.Roy Chowdhury, J. - (1.) This is an application for the stay of a winding-up petition and other consequential orders.
(2.) The present application was moved on the 14th of Feb., 1979, when it was made returnable the next day, the 15th Feb., 1979. On the returnable date a conditional order was made for stay on the deposit of Rs. 1,00,000 by the applicant-company. I am now told that the company preferred an appeal from the said order and the amount of deposit was reduced to Rs. 50,000 by the appeal court. . The said order was not produced before me.
(3.) The petitioning-creditor's claim is for Rs. 2,46,500 on account of a principal sum alleged to have been lent and advanced by the petitioning creditor to the company on the 15th of May, 1976, by cheque, as stated in para. 6 of the winding-up petition. It is alleged by the petitioning-creditor that the said amount was payable on demand together with interest at the rate of 18% per annum and the amount of interest from 15th of May, 1976, to 15th of November, 1978, amounted to Rs. 76,500 and the total claim in the winding-up petition was Rs. 2,46,500. The petitioning-creditor annexed a copy of the certificate of the banker, United Commercial Bank, which was to the effect that the said amount has been realised by the company by encashing the said cheque. The petitioning creditor's claim is that on the 6th of September, 1978, a statutory notice was served on the company and the company has not paid the said amount and has replied to the petitioning creditor's notice evasively. The petitioning-creditor has annexed the relevant correspondence to the winding-up petition which is set out hereunder : "A/150/78 9th Aug., 1978. M/s. John Paterson & Co. (I.) Ltd. 96, Garden Reach Road, Calcutta-700023. Registered with A.D. Dear Sir, My Client:-- Sri Promod Kumar Jalan of No. 32, Seth Jamunalal Bazar Street, Calcutta. Under instructions from my client abovenamed I address you as follows : On or about 15th May, 1976, my clients above-named at your request, lent and advanced you a sum of Rs. 1,70,000 (rupees one lakh seventy thousand only), repayable on demand. You agreed to pay interest on the sum @ 18% per annum. In spite of repeated requests and demands you have failed and neglected to pay to my client the said sum of Rs. 1,70,000 or any part thereof. You have also failed and neglected to pay any interest on the said sum as agreed by you. In the circumstances I, on behalf of my client, hereby call upon you to pay my client or to me on his behalf within 3 weeks the said sum of Rs. 1,70,000 together with the agreed interest thereon @ 18% per annum failing which my client will file application for your winding-up. This notice is being served upon you under Section 434 of the Companies Act, 1956. Yours faithfully, " "Regd. A/D. A/239/78 6th Sept., 1978. John Paterson & Co. (I.) Ltd., 103-A, Foreshore Road, Shibpore, Howrah. My client :--Sri Promod Kumar Jalan of No. 32, Seth Jamunalal Bazar Street, Calcutta. Dear Sirs, Under instructions from my client above-named I address you as follows : On or about May 15th, 1976, my client above-named at your request lent and advanced to you a sum of Rs. 1,70,000 (rupees one lakh and seventy thousand only), repayable on demand. You agreed to pay interest on the said sum at the rate of 18% per annum. In spite of repeated requests and demands you have failed and neglected to pay to my client the said sum of Rs. 1,70,000 or any part thereof. You have also failed and neglected to pay any interest on the sum as agreed by you. In the circumstance I, on behalf of my client, hereby call upon you to pay to my client or to me on his behalf, within 3 (three) weeks the said sum of Rs. 1,70,000 together with the agreed interest thereon @ 18% per annum failing which my client will file application for your winding-up. This notice is being served upon you under Section 434 of the Companies Act, 1956. Yours faithfully, (Sd.) A.P. Agarwalla." "Annexure 'B' John Paterson & Co. (India) Limited. 96, Garden Reach Road, Calcutta-700023. 13th Sept., 1978. Ref. No. JP/BG/NPM/2235/78 Shri A.P. Agarwalla, Advocate, 8, Old Post Office Street, Calcutta-700001. Dear Sir, Your Client:--Shri Promod Kumar Jalan. Please refer to your letter dated the 6th of Sept., 1978. We do not appear to have borrowed Rs. 1,70,000 on interest @ 18% per annum from your client. In order to look into the matter please let us have particulars or the receipt for the said alleged sum and produce the same for our inspection for our doing the needful. Yours faithfully, For John Paterson & Co. (India) Ltd. (Sd.) Illegible. (Accountant)." "Registered with A.D, A/314/78. 21-9-1978, To John Paterson & Co. (India) Ltd., 103/A; Foreshore Road, Shibpore, Howrah. My Client:---Sri Promod Kumar Jalan. Dear Sirs, I am in receipt of your letter No. JP/BC/NPM/2235/78, dated September 13, 1978, and I have received instructions to reply thereto as follows : The sum of Rs. 1,70,000 (rupees one lakh and seventy thousand only), was paid to you by my client by account payee cheque being Cheque No. AT/13/8312629, dated 15th May, 1976, for Rs. 1,70,000 (rupees one lakh and seventy thousand only) drawn upon the United Commercial Bank, Burra Bazar, Calcutta, in your favour. The said cheque was duly encashed upon presentation. In the circumstances it is a futile attempt on your part to deny such payment. As you have failed and neglected to make payment of the said sum of Rs. 1,70,000 together with up-to-date interest as demanded in my letter dated Sept. 6, 1978, my instructions are to file application for your winding up pursuant to the statutory notice dated Sept. 6, 1978, served upon you. Yours faithfully," "Annexure 'B' Registered with A/D. John Paterson & Co. (India) Limited. 96, Garden Reach Road, Calcutta-700023. Ref. No. JP/2292/2300 Shri A.P. Agarwalla, Advocate, 8, Old Post Office St., Calcutta-700001. Dear Sir, Your letter No. A/314/78 dated 21st Sept., 1978, was received by us on the 7th Oct., 1978. Your client has alleged that he lent and advanced to us a sum of Rs. 1,70,000 repayable on demand with interest at the rate of 18% per annum. From our records we do not appear to have borrowed the said sum on interest at the rate of 18% per annum from your client. We naturally, therefore, wish to examine the matter on merits and have accordingly requested you to produce our receipts for the said sum and/or any other documents regarding the terms of the alleged loan. On receipt of such particulars and inspection of documents we reserve our rights to deal with your letter under reply. It seems that your client is only interested in making unwarranted threats of winding up without producing any particulars or documents. Such a threat is unwarranted and motivated and action that your client may take will be at his own risk and responsibility. Yours faithfully, For John Paterson & Co. (India) Ltd. (Sd.) Illegible." (Accountant) "Annexure 'B' Registered with A/D. Ref. No. A/402/78 11-11-78. John Paterson & Co. (India) Ltd., 103-A, Foreshore Road, P.O. Shibpore, Howrah. Dear Sirs, My client :--Promod Kumur Jalan. I am in receipt of your letter No. J-P/2292/2300, dated Nov. 4, 1978, and have received instructions from my client to reply thereto as follows : The various allegations contained in your reply are false, frivolous and meant to delay the payment of just and equitable dues of my client. Your feigning of ignorance will not help in the matter. The cheque No. AT/13/8312629 dated May 15, 1976, drawn by my client in your favour was duly encashed by you through your banker, Punjab National Bank. A copy of certificate dated Oct. 24, 1978, issued by the United Commercial Bank, Burrabazar Branch, Calcutta, is enclosed herewith. The said loan would also be corroborated from your books of account. Inspection of the original bank certificate is offered to you any time during office hours at my office. You are once again requested to pay the dues of my client together with up-to-date interest instead of raising frivolous disputes. Yours faithfully, Enclo : As above. (Sd.) A.P. Agarwalla." The company admitted that the said amount was paid by the petitioning-creditor to the company but alleged that the said amount was paid in respect of 170 debentures of Rs. 1,000 each allotted to the petitioning-creditor pursuant to an application for debenture dated the 15th May, 1976. The company produced before this court the original, in duplicate, of the alleged application of the petitioning creditor, a photostat copy of which is annexed to the affidavit of Anirudha Bose affirmed on the 13th Feb., 1979, being the grounds of the present application. The said alleged application is set out hereunder : "Annexure 'C' Promod Kumar Jalan Phone: 33-4001/2 Office : 32, Seth Jamunalal Bazar Street, Calcutta-7. Phone: 47-5111/2 Residence : 3/1, Queens' Park, Calcutta-19. 15th May, 1976. Application for Debenture The Directors, M/s. John Paterson & Co. (India) Ltd., 103/A, Foreshore Road, Shibpur, Howrah. Dear Sirs, I send herewith cheque No. CINO-AT/13/032629, dated 15-5-76, for Rs. 1,70,000 being the deposit for 170 Nos. of debentures of Rs. 1,000 each in the abovenamed company and I request you to allot us 170 Nos. of debentures on the terms and conditions of the memorandum and articles of association of the company. Usual Signature :-- Full Name : Promod Kr. Jalan Present Address : 32, Seth Jamunalal Bazar Street, Calcutta. Occupation: Business Dated 15th May, 1976. ";