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TMI Blog1998 (8) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... a counter-affidavit (A-7). It has also filed an application stating that the winding up petition be dismissed in view of the preliminary objection raised by the respondent. A rejoinder has been filed by the petitioner to the said counter-affidavit denying and controverting the allegations made therein. I have heard Shri R.P. Dubey, advocate, on behalf of the petitioner and Shri R.P. Agrawal, learned counsel for the respondent on the question whether this petition should be admitted and advertised. I have also perused the affidavit filed by the parties. Briefly stated the case of the petitioner as set out in the petition is that the petitioner which, inter alia , carries business of giving financial loans and assistance gave an intercorporate deposit of Rs. 20 lakhs to the respondent-company for a period of 90 days on September 23, 1993, and the rate of interest was 28 per cent, per annum. The petitioner got the said deposit renewed for a further period of 90 days with effect from December 23, 1993, to March 23, 1994. The deposit was not renewed thereafter and the respondent issued a cheque dated March 23, 1994, for repayment of the said intercorporate deposit. On presentation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Mumbai High Court and the transferee-company before the Delhi High Court. The scheme has been approved by the respective High Courts and the transferor-company has been merged with the present petitioner and under the provisions of the scheme is entitled to recover the debts which were due to the transferor-company. It has also been contended that the respondent was not denying that it had received a sum of Rs. 20 lakhs as corporate deposit and though they were disputing the amount of interest they had at least admitted in the counter-affidavit that a sum of about Rs. 38,000 was due against them which they have not paid despite receipt of statutory notice. Hence, under the provisions of section 434 of the Act, they will be deemed to be unable to pay their debts. Consequently, this petition should deserve to be admitted and advertised. Learned counsel for the respondent has, however, contended, firstly, that the petitioner has no locus standi to file the present petition inasmuch as it is not a creditor of the respondent-company. It has been further contended that even in accordance with the scheme of amalgamation as the provisions of clause 2.1( c ) of the said scheme hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is annexed as annexure-1 to the rejoinder affidavit which shows that in Company Petition No. 33 of 1996, the Delhi High Court by its order dated March 26, 1996, allowed the petition for amalgamation filed by the transferee-company with effect from July 1, 1995. Learned counsel for the respondent has, however, contended that according to clause 2.1( c )( i ), the transferee-company was required to give notice after the scheme was sanctioned, to the debtors intimating that the said transferee-company was entitled to recover the loan or advance paid by the transferor-company and the right of the said transferor-company to recover and realise the said debts stands extinguished. Similarly, under sub-clause ( c )( ii ), the transferor-company was also required to give a notice to the debtors. Prima facie I am not able to agree with the submission made by learned counsel. Sub-clause ( c )( i ) on which learned counsel has placed reliance only mentions the modus operandi to be followed in Respect of the debts which are due to the transferor-company and which the transferee-company will be able to realise. It also says that the transferee company shall give notice in such form as it may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by an agent duly authorised in this behalf. He has contended that in the present case, nothing has been shown that the person who has signed the letter dated August 4, 1995, was either the agent or duly authorised by the respondent-company. Prima facie I am of the view that this contention cannot be accepted. Photocopy of the letter which is annexed as annexure-11 to the petition shows that it was on the letter head of the respondent-company and had been signed by one Deb Kumar Gupta, Assistant Vice-President (Finance). I am unable to accept the submission that the said officer who has signed the letter was not authorised to acknowledge the debt on behalf of the company. I am also not able to accept the allegation made in the counter-affidavit that Deb Kumar Gupta is a lower level officer in the respondent-company. It can be taken notice of that no lower level officer in a public limited company would be given the designation of Assistant Vice-President, who must be a very senior executive of the respondent-company. Prima facie I am of the view that this allegation has only been made to get over the acknowledgment made by the respondent in its letter dated August 4, 1995. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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