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2017 (6) TMI 301 - HC - Companies LawWinding up petition - respondent is unable to pay its debts - allotment of shares to the petitioner in lieu of debt - Held that:- A perusal of all the documents clearly indicates that the respondent had passed an appropriate resolution in the meeting held by the respondent resolving to allot 41300 equity shares to the petitioner in lieu of the outstanding loan of ₹ 4,13,00,000/-. The respondent had also filed various returns from time to time informing the authority such as Ministry of Company Affairs about the resolution passed by the respondent and allotting 41300 equity shares to the petitioner which returns and forms were filed immediately after making such allotment to the petitioner. In my view, filing of such returns and forms immediately after allotment of those 41300 equity shares to the petitioner clearly indicates that the respondent had alloted such shares to the petitioner and had informed the petitioner about such allotment by letter dated 30th September 2006. A perusal of the record further indicates that even in the balance sheet of the respondent for the relevant years, the share capital of the respondent was increased in view of the allotment of 41300 equity shares to the petitioner and simultaneously the loan amount reflected in the balance sheet of the respondent taken from various parties was correspondingly reduced in view of the conversion of the loan amount of ₹ 4,13,00,000/- given by the petitioner. None of such balance-sheets of the respondent are disputed by the petitioner. A perusal of the record indicates that the relationship of the petitioner with the Pankaj Extrusion Ltd. which is denied initially has been accepted by the petitioner belatedly in the rejoinder. The case of the petitioner is totally inconsistent and contradictory. There are several disputed facts. Various triable issues are raised by the parties in this company petition and the affidavits. In my view, the defence raised by the respondent is bonafide and not moonshine and is supported by various documentary and circumstantial evidence. There is no merit in the submission of the learned counsel for the petitioner that the documents relied upon by the respondent which are alleged to have been filed by the Registrar of Companies are unilateral documents and cannot be considered by this Court. Those documents relied upon by the respondent are statutory records demonstrating that the respondent had complied with various provisions of law for allotting equity shares to the petitioner, for converting the loan amount into equity shares and for charging premium. This Court is empowered to consider such statutory documents to consider the allegation of the petitioner that the shares were not allotted to the petitioner with its consent or with the knowledge of the petitioner. There is no legal bar under Section 81(1A) of the Companies Act, 1956 for making allotment of any shares. The jurisdiction of the Company Court while deciding the company petition for winding up is a discretionary jurisdiction. The disputed facts and the allegations of fraud, forgery and fabrication cannot be considered in the winding up petition. Be that as it may, the respondent has produced sufficient documents on record to controvert the allegations made by the petitioner. Thus not inclined to exercise the discretion in favour of the petitioner and against the respondent. - Petition dismissed.
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