TaxTMI 
TaxTMI 
2018 (10) TMI 773
X X X X Extracts X X X X
X X X X Extracts X X X X
....no. 457458 is for Rs. 5,00,000/-, and the fourth cheque dated 7th June, 2011 bearing no. 457489 is for Rs. 7,00,000/-. The petitioner has provided the voucher numbers against each of the cheque to impress upon the fact that the cheques have been received by the said company. 2) The records reveal that all the four cheques have been duly encashed and the money realize therefrom have been appropriated by the said company. 3) The petitioner further states that the loan was repayable with interest at the rate of 18 per cent per annum with yearly rest until repayment. The petitioner has, however, not produced any loan agreement or contemporaneous documents in writing to establish the terms and condition of the said financial accommodation. 4) The petitioner says that, in acknowledgment of the financial accommodation and for repayment of the same, the said company had issued a cheque bearing no. 016227 dated 3rd December, 2012 for a sum of Rs. 5 lacs. The said cheque on being presented, however, has been dishonoured due to insufficient funds. The photocopies of the documents showing the reasons for dishonour has been produced by the petitioner being annexed to the petition. 5) Subseq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tured for them of aggregate value of Rs. 5,00,000/-. An aggregate sum of Rs. 7,82,324/- remained outstanding and, as such, the question of honouring the cheque of Rs. 5,00,000/- made over to the petitioner does not arise. The company further alleges that the petitioner in breach of the agreement and to perpetrate fraud had presented the said cheque for Rs. 5,00,000/- which got dishonoured. The said company has also alleged that the five blank cheques made over by the said company to the petitioner were filled up as self cheques and were encashed by the petitioner's representatives, namely, Sandip Kedia, Mr. Nayak and Mr. Prajapati. The company says that by adding up Rs. 7,82,324/- (Rs. 5,00,000+ Rs. 2,82,324) with Rs. 25,00,000/- realized by the company by encashing the five blank cheques a sum of Rs. 82,324/- is required to be paid by the petitioner to the said company. 7) The said company has, however, not produced any document to show that there was any agreement between the said company and the petitioner in the manner as alleged in the reply. The purported agreement has been pleaded for the first time in the reply to the statutory notice as there appears to be no contemporane....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relied upon the balance-sheets of the said company for the year ending respectively on 31st March, 2011, 31st March, 2012, 31st March, 2013, 31st March, 2014, 31st March, 2015, 31st March, 2016, 31st March, 2017 (which are annexed to its reply to the supplementary affidavit filed by the said company) to impress upon the fact that there has been an increase in the amount under the heading "Loan from Other Companies" commensurate to the money received from the petitioner by the said company as loan and submits that exact amount of increase is reflected under the heading "Loan from Other Companies" which goes on to show that the company has received loan from the petitioner and that the same has remained outstanding even in the books of the said company and, as such, the case sought to be made out by the said company regarding repayment of loan should not be accepted being untenable. The petitioner by showing that the blank cheques said to have been made over to the petitioner towards repayment of loan is also an unbelievable story, inasmuch as, the cheque numbers are not in chronology which otherwise would have been had the said company actually made over such blank cheques at a time....
X X X X Extracts X X X X
X X X X Extracts X X X X
....oto copies whereof are annexed to the company's affidavit at pages 14 to 17 and withdrawal of money therefrom by the petitioner remains a gray area for the reasons aforesaid particularly when the petitioner has not specifically denied the allegations in respect thereof. The agreement pleaded in the company's reply though sounds peculiar is also not specifically denied by the petitioner in its reply to the company's reply to the statutory notice. There is also no loan agreement on record. These factual assertions require trial. The defence of the company cannot be brushed aside as not bona fide or not in good faith in a winding up petition particularly when the ledger of the said company maintained by Balaji Enterprises has been annexed to the petition. But the fact remains that there has been a dishonour of cheque issued by the said company for a sum of Rs. 5,00,0000. The said company has not been able to show even a prima facie ground that this cheque was issued for any other purpose other than repayment of the loan and there is also no allegation of the company having any other transaction with the petitioner. Moreover, the company has itself admitted to have issued the cheque an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se. By applying the ratio laid down in said judgments it can be safely concluded that the said company has no defence far less bona fide defence in respect of the petitioner's claim for Rs. 12,00,000, that is, Rs. 5,00,000 for the dishonoured cheques and Rs. 7,00,000 being the balance which admittedly remains unpaid. 17) The winding up petition is, therefore, admitted for the sum of Rs. 12,00,000/-. On the sum of Rs. 5,00,000/-, the petitioner is entitled to interest at the rate of eighteen per cent as per the provisions Section 80 of the Negotiable Instrument Act, 1882 as applicable for the dishonour of cheque being a negotiable instrument. The interest will be payable on the said sum of Rs. 5,00,000/- from the date of dishonour of the cheque, that is, 1st March, 2013. So far as Rs. 7,00,000/- is concerned, the petitioner is entitled to interest at the rate of ten per cent from the date of the winding up notice, that is, 11th January, 2014. Both the interest will be payable from the respective dates as above until realization. 18) So far as the balance 20,00,000 is concerned the petitioner's claim is relegated to suit. It will be open to the petitioner to file a suit in respect ....