TMI Blog1998 (10) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory notice on September 22, 1995, which was duly served on the respondent-company. Another notice was sent on January 4, 1996, with a copy of the same to the Delhi office of the respondent and to the managing director claiming the principal amount of ₹ 4,75,000 along with interest at the rate of 17 per cent. per annum, the total being ₹ 14,16,176. Despite the said notices being duly served upon the respondent no amount was paid, neither any reply was given, hence the present petition. 3. On notice being issued to the respondent-company to show cause why this petition may not be admitted and advertised, the respondent-company put in appeapance and has filed a counter affidavit controverting the allegations made in the petition. The respondent has not only challenged the maintainability of the present petition but has also denied that there was any debt which was payable by the respondent-company to the petitioner. It has been stated that a sum of ₹ 4.50 lakhs was paid by a cheque dated March 29, 1996, in favour of the petitioner in full and final settlement as per the settlement entered into between the parties and the said amount has been credited to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate issued from the bank whereas the petitioner-company did not have any account in the Bank of Baroda, Khatema branch. It was also contended that the respondent-company had not given any reply, hence the defence set up for the first time before this court in the counter-affidavit was mala fide. A prima facie case, according to learned counsel, was made out for admitting and advertising the petition under Rule 24 of the Companies (Court) Rules, 1959. 6. On the other hand, learned counsel for the respondent has placed various paragraphs of the counter affidavit and the annexures filed therewith and contended that the filing of the present petition is mala fide. It was urged that the alleged debt of ₹ 4.75 lakhs stands repaid in full and final settlement vide the cheque dated March 29, 1996, issued by the respondent-company in the name of the petitioner which has duly credited to the account of the petitioner-company. The said fact stands corroborated by the certificate issued by the concerned bank copy of which has been annexed as annexure 1 to the counter affidavit. It has been contended further that the present petition was engineered by the firm of chartered accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not exercise this discretion of ordering the winding up of the company. In view of the aforesaid settled principles the defence set up by the respondent-company in its reply/ counter affidavit to the petition may be broadly examined. 9. In the counter affidavit filed by the respondent-company it has been stated firstly ; that the alleged debt of ₹ 4.75 lakhs stands repaid vide cheque dated March 29, 1996, issued by the respondent-company in favour of the petitioner for ₹ 4.50 lakhs in full and final settlement of the said debt. In support of the said allegation the respondent has annexed a certificate issued by the Bank of Baroda, Khatema branch which, inter alia, states that the payment of the said amount has been debited to the account of the respondent-company and credited to the account of the petitioner-company. A letter of one of the alleged directors of the petitioner namely, Shri A.P. Rastogi acknowledging the said fact has been annexed to the counter affidavit as annexure 2. Similarly the respondent has also annexed as annexure 3 to the counter affidavit an alleged settlement between the petitioner and the respondent-company accepting a sum of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid directors. It was pointed out that from the memorandum and articles of association of the petitioner-company, which have been annexed to the counter affidavit, it would be evident that the promoter directors of the petitioner were Shri Rakesh Chand Rastogi and Smt. Manju Rastogi and Rajesh Kumar had signed the said memorandum as a witness. It was further pointed out that the address of the registered office of the petitioner was at the residence of Shri Rajesh Kumar at C-45, Naraina Vihar, New Delhi, and the said Rajesh Kumar who was a partner of the firm of chartered accountants and was the statutory auditor of the petitioner as well as the respondent-company, has played a fraud upon the respondent-company and has forged and manipulated the papers. It was further stated that Shri Rajesh Kumar was the cousin of one Babu Lal Rastogi, who was a shareholder and ex-director of the respondent-company and who had been removed on account of manipulation of accounts with the help of the statutory auditors. Babu Lal Rastogi had filed a suit against the respondent-company at Delhi and had obtained an ex parte injunction during the summer vacations. However, on contest the said injunc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anies against the respondent-company have not been denied. Though Form No. 32 has been filed by the petitioner along with the rejoinder affidavit to show that Rakesh Chand Rastogi and Smt. Manju Rastogi and A.P. Rastogi had resigned with effect from February 1, 1987, but the resignation letters or the resolution passed by the shareholders and the board of directors of the petitioner-company have not been filed in support of the allegation. The statutory records of the company are supposed to be kept in the registered office of the company which admittedly was the residence of Rajesh Kumar, the chartered accountant. Therefore, it can be presumed that the records must be in the control of the petitioner. From the perusal of the petition, counter affidavit and rejoinder affidavit it would be evident that allegations and counter allegations have been made by both the parties alleging fraud, forgery and manipulation of documents. It is evident that the directors of both the companies were relations but they have now fallen out and serious disputes have emerged resulting in filing of a suit and a company petition. The allegations made by the parties, as already indicated above, are highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is alleged to have signed the statutory notice was authorised and competent to sign the notice on behalf of the petitioner-company is again a disputed question in view of the allegations made in the counter affidavit. 10. In view of what has been stated above, this court is of the view that as highly disputed questions have been raised which require thorough investigation, the present winding up proceedings, which are in the nature of summary proceedings, cannot be decided only on the basis of affidavits and consequently, this winding up petition should fail solely on the said ground. 11. That apart, as already stated above, under Section 433(e) the petitioner has to establish that the respondent-company is unable to pay its debt and consequently it should be wound up. There is no allegation in the petition that the respondent has become insolvent or its substratum is lost. All that has been stated is that the respondent-company has neglected to pay its debt despite the service of statutory notice and hence, the company should be wound up. In the counter affidavit it has been stated that the respondent-company is a profitable concern and is flourishing and the winding up pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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