Mohammad Rafiq, J. - (1.) Petitioner Company has filed this petition with prayer that respondent-company, having its registered office at 121, K-5 Scheme, Khatipura Road, Jaipur, be ordered to be wound-up under and in accordance with the provisions of the Companies Act, 1956 and the Official Liquidator attached to this court be appointed as Provisional Liquidator in respect of all assets, properties and affairs of the respondent-company.
(2.) Present winding up petition has been filed under section 433 read with section 439 of the Companies Act, 196 on 03.01.2013, praying for the winding up of the respondent-company - M/s Ranwa Real Estate Private Limited (hereinafter referred to as ‘the company’) stating that both petitioner and respondent-company being private companies, limited by shares, are engaged in the business of real estate. In Para 8.1 of the petition, it has been stated that being a real estate dealer, land developer and colonizer, the petitioner, for the purpose of its business, gave Rs. 9,10,00,000/- (Rs. Nine Crores Ten Lacs Only) vide 7 cheques of different dates in the months of April and May, 2006 to the respondent-company as advance towards purchase of certain land. But the respondent-company did not hand over the land as per Memorandum of Understanding (for short, 'the MOU') of April, 2006 (Annexure-14) followed by MOU dated 03.05.2006. Later, on inquiry, it came to notice of the petitioner that the lands agreed to be sold to the petitioner under the aforesaid MOUs were never owned and possessed by the respondent-company. Consequently, the respondent-company gave to petitioner 4 cheques No. 67284, 567285, 567289 and 567281 all dated July, 2006 totalling to Rs. 12,10,00,000/- to return the debt with penalty of Rs. 3 Crores. However, all such Cheques were dishonoured, which led to filing of 3 Criminal Complaints No. 287/07 279/07 under section 138 of the Negotiable Instruments Act, 1881 (in short, ‘N.I. ‘Act or ‘Act of 1881) before the Court at Jaipur. Thereafter, another MOU dated 17.10.2007 was reduced into writing between the respondent-company and petitioner, wherein the petitioner undertook to withdraw all the aforesaid 3 Criminal Complaints and respondent-complain agreed to hand over the possession of the land admeasuring 7000 sq. yards and 29000 sq. yards, claimed to be owned and possessed by respondent-company, situated at village Sevapura and also agreed to give cash amounting to Rs. 1.17 Crore to petitioner. Pursuant to such MOU dated 17.10.2007, the respondent-company handed over 10 post dated cheques (mentioned in MOU dated 17.10.2007) totalling to Rs. 1.20 Crore. Having relied on undertaking and assurance given by respondent-company in the light of such MOU, the petitioner vide applications prayed learned trial court to dispose off all such 3 criminal complaints of 2007, which were accordingly disposed off by the trial court vide its orders dated 08.05.2008. Nevertheless, the respondent-company did not act upon the terms of the MOU dated 17.10.2007. Cash of Rs. 1.17 Crore has never been paid to the petitioner. Out of 10 post dated cheques mentioned in MOU dated 17.10.2007, two cheque bearing No. 807105 dated 11.08.2007 and 807106 dated 18.08.2006 were dishonored. Accordingly, the MOU dated 17.10.2007 was never complied with by the respondent-company.
(3.) Further case of the petitioner-company is that on repeated persuasions of the petitioner, verbal and legal notices and the court proceedings as aforesaid, the respondent-company allotted and handed over the possession of only 3 plots admeasuring to 10987.34 S. Yards, worth only Rs. 81,00,000/- (Eighty One Lacs only), to the petitioner in village Sevapura. Finally, the respondent-company agreed to return the balance debt to the petitioner. On repeated demands of the petitioner, the respondent-company paid/returned Rs. 2,57,00,000/- (including Rs. 80,00,000/- paid vide 8 cheques mentioned in MOU dated 17.10.2007) to the petitioner till 31.03.2011 through various cheques, DD’s and RTGS transfer. Further, the respondent-company paid/transferred further Rs. 50,00,000 /-(Rs. Fifty Lacs only) during the financial year 2011-12 vide RTGS and cheque Nos. 091159 dated 07.08.2011 and 091160 on 09.02.2012 as detailed in Para 8.2 of the petition. Thus, finally, an ascertained and definite debt of Rs. 5,04,00,000/- (Five Crores Four Lacs only) is due to the petitioner as on 31st March, 2012 towards principal sum. For remaining land measuring 18012.66 square yard out of 29000 square yard land and 7000 square yard land was not handed over.;