9911796707
TMI Blog1999 (2) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... s that no payments have been made pursuant to this agreement. The petitioner contends that despite the lapse of time and the service of a statutory notice, that the respondents have still not discharged the debt. The statutory notice was issued on 1-9-1995 and has been replied on 6-10-1995. In the reply, a contention has been raised that some amount of the live culture had become unusable and that certain products have been disposed off by the petitioner and the respondents therefore contend that the aggregate value of these items comes to Rs. 2.5 lakhs, and this amount is deductible from the amounts payable. The contention taken up is also that the amount was agreed upon in order to secure the release of the land in question. The petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt between the parties is dated 15-5-1994 and the learned Advocate submits that had the dispute been raised with regard to the so-called losses of nearly Rs. 3,00,000 which is now being disputed, that there is no conceivable reason why the respondents would have recorded in writing in any agreement on stamp paper, two months after this date, that the amount of Rs. 10,00,000 is outstanding. Furthermore, the learned Advocate has pointed out to me the significant fact that a reading of the document Ex. R1 clearly indicates that it pertains to the liability of Rs. 10,00,000 which means that it is obviously a document that has seen the light of day after the agreement was executed and that it could never have been on record prior to the executio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dates of the documents are significant. The fact that Ex. R1 is dated 20-3-1994 itself, is more than sufficient to establish beyond all reasonable doubt that it is a total and complete fabrication. A reading of that document will indicate that it clearly refers to the outstanding amount of Rs. 10,00,000 and this outstanding amount was recorded for the first time in the agreement dated 15-5-1994. Furthermore, if what the respondents state is true, namely that the outstanding amount was to stand reduced by as much as Rs. 3 lakhs because of the facts set out by them, that it is totally inconceivable that this aspect of the matter would have been brushed aside and that the respondents would have still agreed to the liability of Rs. 10,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an proceed on the basis of the balance amount. In this case, however, that question does not arise because the defence that is pleaded is not only sham but is also absolutely and totally devoid of honesty and substance and in these circumstances, the winding up petition would certainly be maintainable. 6. There is another aspect to the case namely that Mr. Krishnamurthy draws my attention to the second last clause in the agreement which states that the land in question which stands in the name of the petitioner is required to be registered in the name of the respondents on the debt being discharged. His submission is that since the petitioner has not registered the land in question in the name of the respondents, that there is no obliga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this is not done, then the presumption of commercial insolvency is complete. Apart from this aspect of the matter, I also notice that this is not a case in which, apart from a bald averment, any material has been placed before the Court to indicate the financial solvency of the respondents and to merely state that the respondents are solvent in the face of the present record, would not be permissible. 8. Viewed at from any angle, both on facts and on law, the petitioners have made out a ground for a prima facie case which deserves admission. The petition is accordingly admitted. As a necessary consequence of the admission, the petitioners are directed to advertise in the local edition of The Times of India within a period of two ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
