P.P.NAOLEKAR, J. - (1.) THE present winding up petition is filed against Jaipur Mineral Water Private Limited (for short 'the respondent') on the allegations that by agreement to sell dated January 6, 1995, entered into between Kejriwal and Sons Private Limited (for short 'the petitioner') and the respondent, a plot bearing No. F -734 on Road No. 9, F -2 Vishwakarma Industrial Area, Jaipur belonging to the petitioner was transferred for a consideration of Rs. 3,75,000. The respondent issued two cheques ; one for Rs. 18,832 and another for Rs. 3,56,168 for the payment of the consideration to the petitioner.
(2.) AN understanding was reached between both the parties and the cheque for the amount of Rs. 3,56,168 was not encashed. The said amount was kept with the respondent as a loan without interest not to be reclaimed for at least fifteen months. The respondent has paid towards the dues of RIICO an amount of Rs. 37,950 which were against the petitioner and the balance remains with the respondent as loan is Rs. 3,18,218. It was also agreed between the parties that all the three directors shall be paid an amount of Rs. 7,500 each as remuneration and Rs. 2,500 towards petrol expenses for car per month, and the cheque issued by the respondent of Rs. 3,30,260 was towards the directors' fees, petrol expenses for car, telephone connection, power connection, etc. In spite of statutory notice and the approach made to the respondent, no amount was paid. Thus the respondent is unable to pay its debts. After notice, the respondent entered appearance and filed a return admitting the fact that the amount of Rs. 3,56,168 was kept with the respondent as a loan without interest with the condition that it shall not be reclaimed for fifteen months at least. That the cheque which has been issued in favour of the petitioner was encashed on March 20, 1996, includes the amount of loan plus the amount of advance. Therefore, there is nothing due against the respondent to be repaid.
(3.) FROM the pleadings of the parties, it is clear that an amount of Rs. 3,18,218 remains in deposit with the respondent as loan. The question is whether the cheque issued by the respondent in favour of the petitioner is towards the repayment of the loan or towards the payment of directors' fee, petrol expenses for car, telephone connection, power connection, etc.;