TMI Blog2012 (9) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an amount of ₹ 2,26,05,872/- along with interest. 2. The case of the petitioner is that the residential premises bearing Flat No. 101, Nisarg Building 1340-41 at Pali Hill, Bandra (West) Mumbai (said premises) had been taken on rent by the petitioner in terms of the letter dated 10.10.2005. This is a letter written by Ms. Sonia Swami, director of the respondent-Company wherein it has been admitted that the said premises have been given to the petitioner on rent for use as their guest house; the terms and conditions of this letter are contained herein and read as below:- 1. Company will pay security deposit of ₹ 2 crores (Rupees Two Crores Only) 2. Extra deposit equal to rent of 36 months 3. Monthly rent wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dressed to Mr.Anshumaan Swami informing him that his resignation has been accepted; this is Annexure E‟ (page 21 of the paper book). On 12.12.2008 (Annexure F‟ page 22 of the paper book) the petitioner-Company wrote to Mr. Anshumaan Swami (as director of the respondent) informing him that the refund of the security deposit of ₹ 2,26,05,872/- in spite of reminders has not yet been received. Another letter of the same date (12.12.2008) had been written by the petitioner to the respondent requesting him to return the assets of the petitioner-Company which were lying with him which included a laptop, mobile phones and microwave oven. The receipt of this letter has not been disputed by the respondent. Respondent has however d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appointment letter dated 28.03.2002. Vehement submission of the petitioner-Company is that the terms and conditions of his appointment are contained in this appointment letter dated 28.03.2002 which nowhere spells out that he would be entitled to an accommodation. (Annexure A‟ and Annexure B‟ appended along with his appointment letter contained the terms and conditions of his appointment). Attention has been drawn to Annexure A‟ (page 111 of the paper book) wherein incentives were permitted to the CEO; he would be entitled to 10% of the profits in excess of targeted profits for each financial year. Defence of the respondent being bordered on the submission that this sum of ₹ 2.5 crores had unconditionally been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obtained by the petitioner company only in order to save its tax liability. 7. The relevant extract of the statement of accounts of Mr.Anshumaan Swami has been highlighted by the learned counsel for the respondent showing the alleged entries; the enties of ₹ 3,49,020/- and of ₹ 4,50,000/- highlighted by the learned counsel for the petitioner have, however, not been able to be reconciled by him; his submission that ₹ 3,49,020/- is double the figure of ₹ 1,16,340/-(rent after deduction of TDS) is incorrect. This explanation is clearly dissatisfactory. 8. Relevant would it be to also state that there is no explanation whatsoever qua the deposit of the admitted security amount of ₹ 2.0 crores. The only defenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 91 and 92 of the Evidence Act mandate that where there are documents which speak, oral submissions which are to the contrary to the said documents cannot be looked into. 10. In 2009 V AD 726 titled as Indo Alusys Industries Ltd. vs. M/s Assotech Contracts (India) Ltd ., a Bench of this Court had noted that where the defence appears to be bogus and sham and has been raised only in order to create a semblance of an evidence to thwart of the winding up proceedings, such a defence should not be looked into. In 2009 (151) Comp Cas 514 Delhi ) titled as Star Cruise Management Ltd. vs. Delhi Express Travels P. Ltd ., this position was reiterated. 11. No reply had also been filed by the respondent to the legal notice; the proof of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be entertained. In this case the respondent company had already released an amount of ₹ 41 lakhs which according to its defence was the only amount payable to the petitioner. There was no semblance of any admitted debt. It was in this background that the court had noted that the winding up petition should not be admitted. Facts of both the cases are distinct. 14. In this background, it is clear that the defence raised by the respondent is non-creditworthy; it is unreliable. It is in total contrast to of 11 the documents placed on record (all of which stands admitted) Admittedly, ₹ 2.54 crores had been paid by the petitioner to the respondent; ₹ 2 crores was the security deposit; ₹ 54 lacs was the advance rent at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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