TMI Blog2018 (6) TMI 1264X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of interest claimed by the petitioner at the rate of 21%, per annum appears to be exorbitantly high and, as such, the same is reduced to 9%, per annum. Hence, hold that petitioning creditor is entitled to the sum of ₹ 12,12,815/-, together with interest at the rate of 9%, p.a. The winding up application shall be advertised once in the English newspaper, “the Statesman” and once in the Bengali newspaper, “Bartaman” by May 22, 2018. Publication in the Official Gazette is dispensed with - C.P. 486 of 2015 - - - Dated:- 8-5-2018 - Mr. Ashis Kumar Chakraborty, J. For The Petitioner : Mr. Ranjan Deb, Sr. Advocate And Mr. A. Roy, Advocate For The Company : Mr. Jaydip Kar, Sr. Advocate And Mr. Chayan Gupta, Advocate JUDGEMENT Ashis Kumar Chakraborty, J. The petitioner in this application has prayed for winding up of the company under Sections 433(e), 434 and 439 of the Companies Act, 1956 (in short the Act of 1956 ). It is the case of the petitioner that in terms of an agreement dated May 23, 2014 entered into between the parties, it advanced a loan of ₹ 10 lakhs to the company, which was repayable on or before November 30, 2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter dated May 05, 2015 which are not available in its records. The company called upon the petitioner to furnish copies of the said loan agreement and other documents referred to in its said notice dated May 05, 2015. By a letter dated June 03, 2015 addressed to the company s advocate, the petitioner denied and disputed all the allegations made in the said letter of the company dated May 26, 2015. Thereafter, the petitioner filed the present application for winding up of the company. The company contested the winding up application and filed its affidavit-in-opposition alleging that it was originally controlled by the Kanoi Group, where Sanjay Kanoi was a director and principal share holder. In terms of the share purchase agreement dated February 10, 2015 the Kanoi Group transferred their entire share holding to the Desai Group controlled by Sailesh T. Desai. As per the said share purchase agreement, December 14, 2014 was fixed as the cut off date and any liability of the company before such cut off date would belong to the Kanoi Group, who would keep the Desai Group indemnified from any liability arising over and above the assumed liabilities which extended to ₹ 70 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change of management of the company. It was further contended that even it be accepted for the sake of argument, that there is no board resolution of the company for obtaining the said loan of ₹ 10 lakhs from the petitioner ought to enter into the said agreement dated May 23, 2014 the absence of such board resolution has no bearing on the petitioner s claim in this application. It was argued that in the instant case when the company itself alleged that its erstwhile management handed over a document for the period between April 2014 to 1st December, 2014 identifying the amounts in relation to the petitioner under the category of an Advanced Against Tea and the company withheld such document from this Court, an inference may be drawn that the said agreement dated May 23, 2014 all along formed and still forms part of the records of the company. It was further submitted that although the company has sought to put up a defence to the petitioner s claim in this application by alleging that the said agreement dated May 23, 2014 is fraudulent and collusive but, it has not filed any legal proceeding, before the competent Court of law, for cancellation of the said agreement. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company has raised a bona fide dispute to the claim of the petitioner in this application and the defence put up by the company involved tribal issues. Therefore, it was urged by the company that the present winding up application should be dismissed. I have considered the materials on record and the arguments advanced by the learned counsel appearing for the respective parties. In the instant case, the company had received the payment of ₹ 10 lakhs from the petitioner through its bank account by RTGS and the receipt of the said amount of money by the company is not in dispute. In the facts of this case, even the defence sought to be put up by the company that the erstwhile management of the company had received the said sum of ₹ 10 lakhs from the petitioner to create a fictitious liability of the company does not appear to be of any substance .It is the company s own case if it is required to pay off any dues of a creditor which was not disclosed by the previos management to the present magement , the latter is is to be indemnified by the former. According to the present management of the company, there is no board resolution of the company uthorising Mr. Sanjay Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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