- (1.) The case of the petitioner company is that an agreement was signed between it and the respondent company Golden Future Fertilizer Limited on 20-5-2011, whereby a sum of Rs. 1.54 lacs was to be loaned. Following the agreement, a sum of Rs. 1.54 lacs as agreed was advanced to respondent company under three cheques (i) 862 dated 21-5-2011 for Rs. 52,00,000/- (ii) 857 dated 30-5-2011 for Rs. 51,00,000/- and (iii) 858 dated 6-6-2011 for Rs. 51,00,000/- all drawn on Axis Bank, Vaishali Nagar, Jaipur. The said amount as per the terms of the loan agreement was to be repaid at the end of twelve months with interest at the rate of 9% per annum. As a collateral security the respondent company deposited original title deeds of immovable property with the petitioner company. The properties were (i) Khasra No. 987 measuring 0.08 hectare, Tehsil Sanganer, near Gazi Baba ki Dhani District Jaipur and (ii) Industrial land G-1-30, G-1-31, G-1-32, G-1-33, G-1-34, G-1-35, G-1-36 and G-1-27 situate at Industrial Area, Sanwar Udaipur. The three cheques aforesaid aggregating to Rs. 1.54 lacs were encashed as evident from the account of the petitioner company maintained in Axis Bank, Vaishali Nagar, Jaipur and also from the bank account of respondent company, as per a copy of its bank account maintained at ICICI Bank, Tonk Road Jaipur on 23-5-2011, 1-6-2011 and 7-6-2011, both annexed to the petition. In fact the respondent companies balance sheet dated 31-3-2012 acknowledges the loan obtained from the petitioner company and is thus a clear admission of the debt owing to petitioner company which has since remained unpaid.
(2.) The respondent company having failed to adhere to its obligation under loan agreement dated 20-5-2011 and repay the amount Rs. 1.54 lacs along with interest at the rate of 9% per annum at the end of 12 months following the dates on which the loan was advanced, the petitioner demanded repayment but without avail. In fact the respondent company with an intent to defraud and cheat the petitioner company is alleged to have transferred the properties mortgaged with the petitioner company as collateral security to third parties. The petitioner company in the circumstances lodged FIR on 16-4-2013 against the directors of the respondent company for offences under Sections 420, 467, 468, 471, 193, 120B and 406 IPC.
(3.) Aside of criminal proceedings taken against the directors of the respondent company inter alia for the fraud in transferring the assets mortgaged with the petitioner company as a collateral security, the petitioner company also sent a notice under Section 434 of the Companies Act, 1956 (hereinafter 'the 1956 Act') at the registered office of the respondent company Golden Future Fertilizer Limited situate 504/505 Balaji Tower, Durgapura Jaipur on 11-7-2013 under registered AD envelope. The petitioner company however did not receive AD card as a proof of service of notice nor was the notice returned undelivered. In the circumstances, another notice under Section 434 of the 1956 Act was dispatched by the petitioner company under registered AD envelop on 16-7-2013 to the respondent company. This notice was received back by the petitioner company unserved with the remark "unclaimed" by the postal authorities. It has been submitted that in the circumstances presumption of service of the Section 434 of the 1956 Act ought to be drawn against the respondent company. The respondent company has thus in the circumstances neglected its debt to the petitioner company for the outstanding amount Rs. 1.54 lacs along with contracted interest thereon aggregating to Rs. 1,82,60,500 as on 23-6-2013. As per the respondent company's balance sheet for the year ending on 31-3-2012 filed with the Registrar of Companies under section 220 of the 1956 Act it has incurred loss of about 12,11,068.50 as against its paid up capital of Rs. 10 lacs. It has neither any reserve nor any surplus and it is thus evident that entire paid up capital of the respondent company is lost/wiped of in the accumulated losses. It has been submitted that in the circumstances the respondent company is an insolvent debtor and hence be wound up in public interest.;