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2016 (12) TMI 367 - HC - Companies LawNeglect to discharge of debt payable under a loan transaction - winding up petition - Held that:- The explanation offered by the company of a sale transaction and that the parties proceeded on a misconception that the area is larger than 2.73 acres and, accordingly, an excess amount was paid by the petitioning creditor which subsequently on ascertainment of the actual area was refunded without refund of the excess stamp duty and registration cost paid is difficult to accept. The survey alleged to have been conducted on 28th May, 2004 without notice to the petitioner. The consideration for sale of land was paid by separate cheque subsequent to the loan transaction. If the contention of the company were to be accepted then there would be no requirement to issue separate cheques on 15th April, 2014 and May 30, 2014 for ₹ 48,00,000/- and ₹ 1,74,000/-. The said sum of ₹ 1.90 crores ought to have been mentioned in the Memo of Consideration. The necessity to prepare a survey report allegedly on 28th May, 2014 without notice to the petitioner and significantly coinciding with the date of execution of the sale deed is something more that it meets the eyes. The survey report was not at all necessary or required as the recitals of the sale deed would clearly show that the vendor purchased 2.73 acres of land on 14th December, 2005. The very fact that the said sum of ₹ 1.90 Crores was not mentioned in the Memo of Consideration in the sale deed shows that the parties never intended to treat the said amount as sale consideration. Accordingly, the company upon making payment of a sum of ₹ 86 lakhs to the petitioner and furnishing cash security for a sum of ₹ 52 lakhs in favour of the Registrar, Original Side, High Court, Calcutta within a period of four weeks from date with intimation to the petitioner shall be entitled to stay of winding up petition and the petitioning creditor would be required to file a suit for the remaining balance amount of ₹ 52 lakhs together with interest within a period of four weeks thereafter. However, if the petitioner fails to institute such proceeding notwithstanding the compliance of this order by the company, the Registrar, Original Side, High Court, Calcutta shall refund the said amount together with interest of the company on payment without any further reference. The Registrar, Original Side, High Court, Calcutta shall deposit the said amount with the United Bank of India, High Court Branch in a suitable fixed deposit account yielding highest return and shall keep the said account renewed till the disposal of the suit.
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