TaxTMI 
TaxTMI 
2012 (9) TMI 744
X X X X Extracts X X X X
X X X X Extracts X X X X
.... he resigned from the Board of Directors of the respondent Company with effect from 1.2.2010. A copy of the resignation dated 1.2.2010 along with the postal receipts and acknowledgements are produced as Annexures-C, D and E. 3. The contention of the petitioner is that an amount of Rs. 1,58,01,468/- is still lying to his credit in the Share Application Money Account in the respondent Company and a request was made by him not to issue or allot any shares in his name. In addition to this, he had also given Rs. 3,77,861/- to the respondent Company as an unsecured loan. The said amount is still continuing to be shown in the books of account. That the respondent Company was incorporated on 7th day of May, 2007 The Memorandum of Articles is pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... his investments from the project of the respondent Company. That based on the credibility of the respondent Company, the financial institutions have sanctioned a loan of Rs. 25 crores to them. That in terms of the loan sanction letter, which the petitioner is very well aware of, all the monies infused by the Promoters and Directors are subordinate to the loan availed from the State Bank of India. Hence, on this ground itself, the demand made by the petitioner is unsustainable. It is his further case that the petitioner has represented to the Bank that he would be investing a further sum of Rs. 1.5 crores as his contribution to the respondent Company, but he has failed to do so and on his failure to do so, the present petition has been file....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Counsel for the petitioner. 9. No submissions are forthcoming on behalf of the respondent. 10. The plea of the petitioner is that the share application money paid by him to an extent of Rs. 1,58,01,468/- has not been repaid by the respondent and hence, it is a debt due. Secondly, that a sum of. Rs. 3,77,861/- has been paid to the respondent as unsecured loans. The same is reflected in the balance-sheet and the same has remained unpaid. On a legal notice being issued, the debts have not been cleared and hence, the respondent Company requires to be wound up. 11. In support of the first submission, the learned Counsel for the petitioner relies on a judgment of the Delhi High Court in the case of Bhajan Singh Samra v. Wimpy Internat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t into equity shares in the petitioner's favour and also agreed to appoint the petitioner as an Executive Director. That in spite of repeated requests neither the shares were issued by the respondent Company nor the petitioner was made a Director. Criminal proceedings were also initiated against the respondent Company. Under these circumstances, the petitioner filed for winding up of the respondent Company In this background, the Court was of the view, that in terms of the written statement, there is a willingness to issue the shares but no shares had actually been allotted in terms of para 23 of the judgment. In para 21 of the judgment as relied upon by the petitioner, what the Court had to say was that when the allotment of shares is not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Therefore, even before the petition was filed, the shares have been allotted. 17. The second contention is that a sum of Rs. 3,77,861/- has been paid as an unsecured loan to the Company in respect of which it is pleaded that even in the statement of objections, there is no denial about the said amount and that the respondent has only stated that the said amount is not due for payment. Reliance is placed on the balance sheet to show that under the heading 'Unsecured Loans' from Directors and Relatives an extent of Rs. 24,70,167/- is shown as on 31.3.2009. It is, therefore, contended that this amount includes the amount paid by the petitioner to the respondent. The contention of the petitioner is solely based on para-11 of the statement of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment reached on June 4, 1986, in regard to the repayment in the manner indicated, then, it is likely that the respondent company would succeed in postponing its liability even if a suit was filed having regard to the fact that the present petition must be construed by this court as a petition filed to coerce the repayment of the amount which is not immediately due to be paid to the petitioner, as laid down by the Supreme Court in the case of M/S. Madhusudhan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC). Section 433 cannot be made use of to coerce a company to make payments (not immediately due) even though the liability is admitted. This is the position in England as well. ** ** **"....