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2016 (10) TMI 1325 - HC - Companies LawSeeking winding up of the respondent company - no reply to the statutory notice and thus the presumption that the respondent company is unable to pay debts as and when they arise in the usual course of business - HELD THAT:- The fact that the option under clause (6) was exercised or at least is deemed to have been exercised is evident from the correspondence which demands payment of monies. In the circumstances, it is not open for the company to now contend that the petitioner could have sought performance of the alleged agreement. There is some doubt as to whether the agreement was entered into or at all. It is conceded by Mr. Khandeparkar that the agreement is presently not available and in any case not registered. The agreement for sale is not relied upon in the petition which would normally have been the case. However, the fact remains that the cheques have been issued there is no explanation forthcoming from the respondent company as to why these cheques have been issued. The controversy relating to the agreement for sale is something that can gone into in appropriate proceedings. The cancellation agreement on the basis of which the petitioner has proceeded is dated 2nd April, 2014. The first of the cheque issued pursuance to the agreement is also dated 2nd April, 2014 - However, the petitioner waited for over almost 6 months to deposit the cheque and admittedly first cheque was deposited only on 18th August, 2014 well beyond its validity and therefore the bank returned the instrument for the reason that the instrument was out of date/stale. Thus, what remains to be seen is whether the second cheque was deposited in bank and why the same was not honoured. Exhibit H to the petition is a copy of the dishonour memo received by the petitioner from their bank along with the copy of the cheque dated 15th June, 2014. The amount of ₹ 5.90 crores at least appears to be due and in the light of the above facts the respondent must be put to terms - The respondent company shall deposit a sum of ₹ 5.90 lakhs within six weeks from today - In the event deposit is made and if a suit is filed by the Petitioner, the amounts so deposited will be transferred to the suit account and and to be invested initially for a period of one year to be followed by further renewals.
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