2011 (9) TMI 763 - HC - Companies Law

Winding up petitions - the appellants did not produce in their respective petitions disclosing the reasons for filing these winding up petitions - The fund-flow statement clearly evidences that transaction was concurrent and substantial as identical amounts have been transacted over short periods - It is difficult for this court to scrutinize in great detail in a summary proceedings for it needs witness action as fraud and forgery has been allege - the petitioning-creditors/appellants have been able to establish their prima facie case for maintaining winding up petition as we find payment of loan amount is admitted more or less the factum of repayment has to be established with concrete document - Held that disputes raised by his client are of such nature it cannot be decided in a winding up petition defence is not as such clear and strong because of lack of document of repayment to other companies as alleged by his client by producing the bank statement unconditional order of staying winding up petition permanently can be supported - responded directed to deposit security in order to secure stay against winding petition as granted by the trial court.

Issues Involved:
1. Bona fide dispute regarding loan transactions.
2. Allegations of fraud and forgery.
3. Circular transactions and their implications.
4. Maintainability of winding up petitions.
5. Requirement of security for disputed claims.

Detailed Analysis:

Bona Fide Dispute Regarding Loan Transactions:
The appellants lent substantial amounts to the respondent company through oral agreements, with payments made via account-payee cheques. Despite repeated demands, the company failed to repay or secure the amounts. The company, however, claimed that the amounts were transferred to third parties based on instructions from the appellants, which the appellants denied, asserting that the letters instructing such transfers were forged.

Allegations of Fraud and Forgery:
The appellants contested the authenticity of the letters instructing the transfer of funds to third parties, alleging that these documents were forged. The learned company judge found that the transactions appeared circular and fictitious, raising issues of fraud and forgery that could not be resolved in a summary proceeding but required a detailed examination in a civil suit.

Circular Transactions and Their Implications:
The company argued that the transactions were circular, intended to inflate its financial position before a public issue. The learned judge noted that the transactions appeared to be artificial and that the company had not produced sufficient documentation to prove the alleged repayments, thus raising significant doubts about the genuineness of the transactions.

Maintainability of Winding Up Petitions:
The court examined whether the winding up petitions were maintainable given the disputed facts. It was noted that while the fact of payment by the appellants was not disputed, the alleged repayments to third parties were not substantiated with concrete evidence. Therefore, the petitions were deemed maintainable, but the disputes were relegated to be resolved in civil suits due to the complexity and need for detailed examination.

Requirement of Security for Disputed Claims:
The court modified the judgment of the learned trial judge, requiring the appellants to furnish security in the form of bank guarantees or other acceptable forms to the satisfaction of the Registrar Original Side. The amounts specified were Rs. 2,15,50,000 for the first appeal and Rs. 4.18 crores for the second appeal. This security was to be held until the resolution of the disputes in civil suits. If the security was not furnished or suits were not filed within the stipulated time, the winding up petitions would be admitted, and the appellants could seek directions for advertisements.

Conclusion:
The judgment addressed multiple complex issues, including bona fide disputes, allegations of fraud and forgery, and the nature of circular transactions. The court ultimately decided that the disputes required detailed examination in civil suits and imposed conditions for furnishing security to ensure the claims were adequately protected. The judgment highlights the importance of concrete evidence in substantiating claims and the limitations of summary proceedings in resolving intricate factual disputes.

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