9911796707
TMI Blog2002 (10) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... ft limits and/or Loan facilities had not been granted to the respondent-company. Nevertheless, admittedly by mistake, the Cheque for the aforementioned sum of Rs. 2,11,94,000 was cleared without sufficient funds being available, and payments had been released to M/s. Charu Trading. A Statutory Notice was issued to the respondent-company in reply to which the above narrated circumstances were highlighted. The respondent-company has denied its liability for making any payment to the Petitioner. 2. The Learned Counsel relies on Bank of Maharashtra v. United Cons-truction Co. AIR 1985 Bom. 432, in which a Division Bench of the High Court of Mumbai had observed that if an account holder, even without any express grant of overdraft facili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : A banker is not obliged to let his customer overdraw unless he has agreed to do so or such agreement can be inferred from course of business; borrowing and lending are a matter of contract not necessarily premeditated but possibly, spontaneous, as where a customer, without previous arrangement, draws a cheque, payment of which overdraws his account. Unfortunately, the aforesaid decision and the aforesaid books were not shown to the learned trial judge. if the legal position set out in the same is taken into account there is no doubt that where a customer, namely an account holder in bank, even without any express grant of an over-draft facility overdraws on his account and the cheque issued by him is honoured, the transaction amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the entries in the ledger. In case the said entries are challenged by the customer on a plea that there has been fraud or that the signatures of the customer are forged then the matter shall become difficult and other tools of analysis shall be required to settle the dispute." 4. It is trite to state that winding up proceedings partake of summary nature and an admitted debt must be shown to be in existence for the petition to be entertained. Where a dishonest defence is presented, which is in the nature of moonshine, the Company Court would be empowered to proceed with the Petition even in the absence of an admitted debt. 5. The observations of the Hon ble Division Bench were made in the context of a civil suit and not of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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