TMI Blog2016 (12) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... oinciding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipality since renumbered as Premises Nos.16 and 16/1, Thakur Pukur Road, formerly Badu (hereinafter referred to as the said land ). This land was owned partly by the Vigneshwara Properties Pvt. Ltd., that is, 1.685 acres of R.S. Dag No.270 and 0.265 acre in R.S. Dag No.270/306 being Municipal Holding No.16. The rest of the land measuring 0.685 acres in R.S. Dag No.270 and 0.095 acres in R.S. Dag No.270/306 belonged to Pragma Builtech Pvt. Ltd. Pragma Builtech Pvt. Ltd. and Vigneshwara Properties Pvt. Ltd. herein are sister concerns having common Directors and Shareholders. The deponent of the affidavit on behalf of the company is in control of both these two companies. The price that was fixed by agreement was ₹ 1.65 crore per acre. At the time of entering into the contract, the Company and its sister concern, Pragma Builtech Pvt. Ltd. were under the bona fide impression that the land, in fact, measured in all 3.32 acres. In fact, after acquiring the said land, the Company herein and Pragma Builtech Pvt. Ltd. had erected a boundary wall. After erection of the boundary wall, the land was not re-measured. The management of both the Company herein and Pragma Builtech Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.04.2014 Rs.2,00,00,000/- ATC Logistic 15.04.2014 Rs.1,90,00,000/- Vigneshwara 15.04.2014 Rs.90,00,000/- Pragma It was agreed and understood that after final measurement, necessary adjustments in the price would be made. The land was thereafter measured sometime around end May, 2014 by a surveyor Mr. Amin Molla and it was found on actual measurement that the land was, in fact, 2.73 acres and not 3.32 acres. Accordingly, it was agreed that ₹ 1 crore would be returned to the petitioner. The two Conveyance Deeds were thereafter executed both on 28th May, 2014, one with the company herein and other with Pragma Builtech Pvt. Ltd. The market value of the land as assessed by the Registering Authority for the purpose of assessment of stamp duty, was ₹ 5,34,46087/- out of which that applicable to the company for 5 bighas 18 cottahs of land was ₹ 3,68,54,472/- and that for Pragma Builtech Pvt. Ltd. for 2 bighas 7 cottahs and 3 chittacks was ₹ 1,65,91,615/-. Only after the full stamp duty was paid by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e agreements was 2.73 acres and the plea that is now being raised that the parties on mistaken belief about the actual area of the land had agreed to the consideration over ₹ 5 Crores and thereafter on ascertainment of covered area had agreed to refund ₹ 1 Crore is a cooked up story and an ingenuous musk invented to defeat a legitimate claim of the petitioner. In this regard reference is placed on the judgment of the Hon ble Supreme Court in IBA Health (India) Pvt. Ltd. Vs. Info Drive Systems SDN. BHD reported at 2010(10) SCC 553. In order to admit a petition for winding up, the Court has to be satisfied that there is a neglect to pay a debt. The refusal to pay a sum of money on legitimate grounds cannot constitute a neglect to pay a debt. The Court has to be satisfied that the Company is required to discharge a debt and has without any just cause refused to pay the said amount. The considerations that weigh the Court in deciding an application for winding up on the ground of failure and/or neglect to pay a debt is akin to the same principle that the Court applies while considering an application under Order 37 of the Code of Civil Procedure or Chapter XIIIA of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to sign judgment the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence. The said judgment was followed by the Hon ble Supreme Court in M/s. Mechalec Engineers Manufacturers v. M/s. Basic Equipment Corporation reported at AIR 1977 SC 577. In Madhusudan Gordhandas Co. Vs. Madhu Woollen Industries (P) Ltd. reported at AIR 1971 SC 2600, the Supreme Court held that if the Company raises a defence in good faith or a defence which is likely to succeed or prima facie likely to succeed at the trial, in that event the winding up application would fail. Sir George Jessel Master of the Rolls in London and Paris Bank Corporation reported at 19 Equity Cases 444 said that the Company should have reasonable ground for not paying the debt of the petitioning creditor, to avoid liquidation proceedings. The company must be in a completely defenceless position. It would suffice if the company raised a triable issue, for relegation of the winding up application to a civil fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles laid down in the above mentioned cases indicate that if the debt is bona fide disputed, there cannot be neglect to pay within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to 14 pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as neglect to pay so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956. 31. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. Bona fide dispute implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company s refusal is supported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration for sale and/or on that basis a cheque for a sum of ₹ 1.90 crores covering the balance amount was issued. The agreement for sale where it is alleged that the price of land was fixed at ₹ 1.65 crores as alleged in the affidavit has not been disclosed. Even if it is accepted that ₹ 1.90 Crores was paid as consideration for sale of the said land then a sum of ₹ 1.41 crores approximately would be payable by the petitioning creditor to the company and admittedly no demand was made for the aforesaid sum. In the reply to the winding up notice no such defence was raised. Even if it is accepted that the company had paid a sum of ₹ 52 lakhs towards refund of excess amount received which is difficult to accept a sum of ₹ 86 lakhs would still be due and payable by the company to the petition creditor. Moreover, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
