AI Drafter 
TaxTMI 
TaxTMI 
2018 (6) TMI 1264
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....rne Road Branch, The petitioner has disclosed a copy of the relevant portion of its bank statement showing payment of Rs. 10 lakhs to the company through RTGS. Since the company did not repay the said sum of Rs. 10 lakhs as per the agreed terms, within November 30, 2014 by a letter dated December 04, 2014 the petitioner called upon the company to pay its dues under the said agreement. By a letter dated December 18, 2014 the petitioner acknowledged the receipt of the payment of Rs. 10 lakhs under the said agreement dated May 23, 2014 and stated that it is trying its level best to repay the said amount, along with interest at the earliest. However, the company did not make any payment to the petitioner. By a notice dated May 05, 2015 issued under Section 434 of the Act of 1956 (hereinafter referred to as "the Act of 1956") the petitioner called upon the company to pay the principal amount of Rs. 10 lakhs, together with the agreed rate interest amounting to Rs. 12,12,815/-. By a letter dated May 26, 2015 the company, through its advocate, replied to the said notice dated May 05, 2015 disputing its liability to pay any money to the petitioner. In the said letter the company alleged tha....
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....said loan of Rs. 10 lakhs from the petitioner and said Loan Agreement dated May 23, 2014 has been brought into existence by the Kanoi Group by acting hand in glove with the petitioner to suit their personal benefits and the said agreement is a forged and fabricated document. It was alleged that the amount shown to have been transferred in the account of the company by the petitioner through RTGS is a fictitious liability created by the Kanoi Group and the petitioner in connivance with each other. According to the company, even if the said amount of Rs. 10 lakhs was in fact paid by the petitioner, the same was the liability of the Kanoi Group as there was no approval of the Board of the company authorising Sanjay Kanoi to take such alleged loan on behalf of the company from the petitioner. It was also alleged that while negotiations for purchase of the Seller Group's shareholding was in progress, the said group had handed over to the purchasers in or around December, 2014 a document for a period between April, 2014 - 1st December, 2014 which identified amounts in relation to the petitioner under the category of "Advance Against Tea". The company further alleged that since the petiti....
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....unsel appearing for the petitioner urged that the allegations made by the company in its affidavit-in-opposition do not constitute any bona fide defence to the petitioner's claim in this application and, as such, the present winding up application against the company should be admitted. However, Mr. Chayan Gupta , led by Mr. Jaydip Kar, learned advocate appearing for the company submitted that the allegations made by the company in its affidavit-in-opposition disclose that the company has a bona fide defence to the claim of the petitioner in this application. It was submitted that the petitioner could not dispute the change of management of the company in terms of the said share purchase agreement dated February 10, 2015 between the said Kanoi Group represented by Mr. Sanjay Kanoi with the Desai Group. According to Mr. Gupta,, in the absence of any board resolution of the company authorising the said Sanjay Kanoi to obtain the said loan of Rs. 10 lakhs from the petitioner, the present management of the company cannot be made liable to repay the said sum, together with interest thereon to the petitioner as claimed in this application. It was submitted that in order to establish i....
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....that the company had passed the necessary resolution authorising its directors to enter into the said agreement dated May 23, 2014 and to receive the said loan amount. Although, the company has claimed that the said agreement dated May 23, 2014 entered into between the petitioner and itself is fraudulent and not binding upon it but, the company has not filed any legal proceeding before any competent court of law to have the said agreement cancelled. The company further alleged that the said "Kanoi Group" made over certain documents to the present management, "Desai Group" identifying certain amounts in relation to the petitioner under the category of "Advanced Against Tea". The company has, however, withheld such documents from this Court. Further, from a bare reading of Section 13 of the Actof 1940 it appears that it is when a plaintiff files a suit to recover its dues from the refund defendant on account of money lent and advanced, without holding the appropriate licence and the said Act, the said suit is only liable to be stayed until the plaintiffs obtains the money lender's licence. The said Section 13 of the Act of the 1940 does not apply to an application filed under the Act....