TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 367
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....5 alleging that the Company had never taken any loan of Rs. 1.90 Crores. The amount was paid in discharge of a legal liability. The company not being satisfied with the said explanation has filed this application. Mr.Utpal Bose, the learned Senior Counsel appearing on behalf of the petitioner has referred to the cheque, bank statement, a notice dated 4th February, 2015 and the statutory notice and submits that indisputably the company had failed to discharge its debt. Mr. Abhrajit Mitra, the learned Senior Counsel appearing on behalf of the Company submits that the said amount, in fact, represents a part of sale consideration payable in terms of an agreement for sale that was entered between the petitioner and the company. It is submitted that the petitioner has suppressed the fact that the petitioner through his Company, M/s. I.P. Traders Pvt. Ltd. had acquired a plot of land measuring 2.73 acres situated in R.S. Dag No.270 and R.S. Dag No.270/306, Barasat Municipality since renumbered as Premises Nos.16 and 16/1, Thakur Pukur Road, formerly Badu (hereinafter referred to as "the said land"). This land was owned partly by the Vigneshwara Properties Pvt. Ltd., that is, 1.685 acre....
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....Pvt. Ltd. and partly in the name of ATC Logistics Pvt. Ltd., an associate concern which is also under the control and management of the present company. This agreement was reached sometime around early April, 2014 and would be borne out from the dealings and transaction. On the basis of measurement of the land, that is, 3.32 acres and believing it to be correct area, the petitioner paid the difference amount, that is, total price of the land on the basis of the area of 3.32 acres less than the apparent consideration for the land, that is, Rs. 69,96,000/-, by account payee cheque to the company herein, that is, Rs. 1,90 Crores only, to Pragma Builtech Pvt. Ltd. Rs. 90 lakhs only, to Pragma and Rs. 2 Crores only to ATC Logistics Pvt. Ltd.. These payments were made between 15th April, 2014 and 16th April, 2014, particulars whereof are given below:- Date Amount Paid to 16.04.2014 Rs.2,00,00,000/- ATC Logistic 15.04.2014 Rs.1,90,00,000/- Vigneshwara 15.04.2014 Rs.90,00,000/- Pragma It was agreed and understood that after final measurement, necessary adjustments in the price would be made. The land was thereafter measured sometime around end May, 2014 by a surveyor ....
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.... No.206 of 2015, APOT No.547 of 2015, CP NO.89 of 2014 dated 14th March, 2016; iii) In the Goods of: Kamal Kumar Mitra and In the Matter of: Taxation Services Syndicate Ltd. reported at 2008 (3) CHN 384; iv) Niranjan Lal Todi & Anr. VS. Nandlal Todi & Ors. reported at 2011 (1) CHN (Cal) 762; v) V.N. Devadoss Vs. Chief Revenue Control Officer-cum-Inspector & Ors. reported at (2009) 7 SCC 438. In reply, Mr. Mainak Bose led by Mr. Utpal Bose, learned Senior Counsel submits that the story as spun in the affidavit is completely unbelievable. It would be clear from the recital of the Conveyance Deeds that the parties all throughout knew that the exact area to be sold under the agreements was 2.73 acres and the plea that is now being raised that the parties on mistaken belief about the actual area of the land had agreed to the consideration over Rs. 5 Crores and thereafter on ascertainment of covered area had agreed to refund Rs. 1 Crore is a cooked up story and an ingenuous musk invented to defeat a legitimate claim of the petitioner. In this regard reference is placed on the judgment of the Hon'ble Supreme Court in IBA Health (India) Pvt. Ltd. Vs. Info Drive Systems SDN. BHD rep....
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....fence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence." The said judgment was followed by the Hon'ble Supreme Court in M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation reported at AIR 1977 SC 577. In Madhusudan Gordhandas & Co. Vs. Madhu Woollen Industries (P) Ltd. reporte....
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....ntial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bona fide disputed debt. 23. The principles laid down in the above mentioned cases indicate that if the debt is bona fide disputed, there cannot be "neglect to pay" within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to 14 pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the ....
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....of the actual area was refunded without refund of the excess stamp duty and registration cost paid is difficult to accept. The survey alleged to have been conducted on 28th May, 2004 without notice to the petitioner. The Company has attempted to justify the receipt of Rs. 1.90 crores as consideration for the sale of land on the basis of stamp duty assessed by the collector at Rs. 3,68,54,472/- on 2nd June, 2014 as opposed to a sum of Rs. 49.74 lakhs mentioned in the said deed as sale consideration. There is no document to show that the petitioner had agreed to pay a sum over and in excess Rs. 49.74 lakhs as consideration for sale and/or on that basis a cheque for a sum of Rs. 1.90 crores covering the balance amount was issued. The agreement for sale where it is alleged that the price of land was fixed at Rs. 1.65 crores as alleged in the affidavit has not been disclosed. Even if it is accepted that Rs. 1.90 Crores was paid as consideration for sale of the said land then a sum of Rs. 1.41 crores approximately would be payable by the petitioning creditor to the company and admittedly no demand was made for the aforesaid sum. In the reply to the winding up notice no such defence was ....