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2016 (11) TMI 1703 - HC - Companies LawCancellation of cash credit facility under which the loan was obtained - default in repayment of loan - privity of contract between the respondent Bank in carrying on business - insufficiency of stamp duty - HELD THAT:- In the present case, the Company raises a defence that if the creditor was to enforce the corporate guarantee on account of non-payment of dues by the main borrower, in a Civil Court, the creditor could not be relying upon this document which forms the basis of the debt since it is inadequately stamped. If such defence is taken up in a Civil Suit, and if the document in question is insufficiently stamped, probably, such defence may come to the aid of the appellant. At this stage, there are no steps taken by the creditor to enforce its claim against the guarantor based on the documents of corporate guarantee in the State of Maharashtra. Therefore, definitely, in the present Company Petition, the Company Court was not required to consider such plea raised by the appellant. Therefore, such defence will not hold water in aid of appellant's contention. Want of certificate by an authorized officer of the respondent Bank, in accordance with the terms of corporate guarantee, the certificate referred to in clause 15, is said to be a conclusive proof of the dues. It could be one of the modes of conclusive evidence against the guarantors. However, there could be other evidence of such conclusive evidence of the dues. In other words, it could be proved by other means of evidence. If there is convincing material on record with regard to the dues of the creditor against whom winding up is sought, it is immaterial whether a certificate of the nature was produced or not. When a statutory notice before lodging Company Petition seeking winding up of the appellant's Company was filed by the respondent Bank, they had made it clear that the respondent bank's debt was over 22 crores, therefore, cannot be said to be disputed with bonafides on the part of the appellant. There is nothing on record to show that in the Company Petition, the respondent Bank has not correctly disclosed the position of the debt as on the date of the petition. Appeal dismissed.
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