Arijit Banerjee, J.
1) The case of the petitioner is thatat the request of the Company, it had advanced loan for a sum of Rs. 30 lakhs for four months to the Company to help the Company tide over financial crisis. This was done through two RTGS dated 30th June, 2012 and 1st August, 2012 for Rs. 5 lakhs and Rs. 25 lakhs respectively. It is the case of the petitioner that although four months lapsed, the Company failed and neglected to repay the money with agreed interest at the rate of 18 per cent per annum. The petitioner made repeated requests and demands but in vain. Finally the company issued 15 cheques for Rs. 2 lakh each in favour of the petitioner which were presented for payment but were all dishonoured for lack of funds. Five of the cheques were dated 13th April, 2013, five cheques were dated 20th April, 2013 and the remaining five cheques were dated 27th April, 2013.
2) In view of the aforesaid the petitioner contends that a sum of Rs. 35,47,890 is due and payable to it by the Company including interest at the rate of 18 per cent per annum from 30th June, 2012 to 31st July, 2013. Accordingly, a notice dated 24th June, 2013 under Section 434 of the Companies Act was served on the Company which was received by the Company on 28th June, 2013. Neither did the Company reply to the said statutory notice nor paid any money to the petitioner. The petitioner contends that the Company is unable to pay its debts and should be wound up.
3) Appearing for the Company, Mr. Parimal Nath, Learned Counsel fairly conceded that apart from bare denials there is not much in the affidavit-inopposition filed on behalf of the Company. In fact, he did not even once refer to the affidavit-in-opposition. His argument was based on the pleadings filed on behalf of the petitioner. He referred to paragraph 3(i) of the affidavit-inreply filed on behalf of the petitioner which refers to an agreement, copy whereof is annexure A to the affidavit-in-reply. Referring to the said‘Agreement’, he submitted that the same was to remain in force for a period of one year and three months and the entire principal amount of Rs. 30 lakhs was to be repaid in 15th monthly installments of Rs. 2 lakhs each and that 15 postdated cheques had accordingly been issued by the Company. He submitted that as on the date of issuance of the statutory notice which was on 24th June, 2013 or on the date of filing of the winding up petition which was on 29th August, 2013, the entire sum of Rs. 30 lakhs did not become due and payable to the petitioner. He submitted that the winding up petition is premature and the petitioner has not approached this Court with clean hands. Further, the demand for Rs. 30 lakhs on account of principal in the statutory notice was bad as on that date the entire principal amount had not become payable to the petitioner as per the terms of the ‘Loan Agreement’. As such, the statutory notice was bad and consequently the winding up petition must fail. He relied on a decision of a Learned Single Judge of the Patna High Court in the case of Parry and Company Limited-vs.-India Machinery Stores (P) Ltd. Reported in 49 Company Cases 21. With respect, I do not think that the said decision helps the Company’s case at all.
4) The document, copy whereof is annexure A to the affidavit-in-reply is an undated document. Although it describes itself as an agreement, it bears no date nor is it signed on behalf of the petitioner. However, it is signed on behalf of the Company. I requested the parties to produce the original of this document but they were unable to do so immediately. However, on a specific query it was stated on behalf of the petitioner that this document was never signed on behalf of the petitioner. This statement was not objected to on behalf of the Company. Hence, this document cannot properly be described as an agreement. At best, it can be taken to be an acknowledgement of receipt of Rs. 30 lakhs by the Company from the petitioner. It is significant that in the Company’s affidavit, there is no mention at all of such alleged agreement.
5) In the case of New Red Bank Tea Company-vs.-Jahar Roy reported in 2003(2) Bankers Journal 357, a Division Bench of this Court laid down that defence not taken in the reply to the statutory notice but taken for the first time in the affidavit-in-opposition filed in the Court, cannot be accepted for holding that the Company’s refusal to pay is based on bona fide defence or the nonpayment of the debt did not amount to its neglect to pay. In the instant case, the Company did not even bother to reply to the statutory notice.
6) The Company has not disputed the receipt of Rs. 30 lakhs. Its contention that as per the ‘Loan Agreement’, the entire sum had not become due and payable as on the date of filing of the winding up petition cannot be accepted since as already noted above, the concerned document cannot be taken to be an agreement. It does not appear that the Company has any bona fide defence to the petitioner’s claim.
7) In the premises, this Company petition is admitted for a sum of Rs. 35,47,890/- . However, the Company is given opportunity of repaying this amount in five equal monthly installments, the first of which is to be paid on or before 15th May, 2014, and the following installments on the 15th day of each surrounding month. If such installments are paid, the order of
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admission of the winding up petition shall remain stayed. There will be an unconditional stay till 15th May, 2014 and, thereafter, the stay will continue only if installments are paid as afore stated. In the event of the Company paying off the entire dues of the petitioning creditor in the manner aforestated, this winding up petition will remain permanently stayed. In default of payment of anyone installment, advertisement will be published once in 'The Telegraph' and once in 'Bartaman' and the matter will appear before the Company Court two weeks after such advertisements are published for further orders.