9911796707
TMI Blog2000 (7) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... National Bank of Rs. 1,30,000 and delivered it to the authorised representative of the respondent-company. The demand draft was given to HCL. Thereafter, vide letter dated June 6, 1992, again the respondent-company requested for giving financial assistance of Rs. 1,50,000. The petitioner purchased demand draft No. 227231 dated June 8, 1992, drawn on Punjab National Bank of Rs. 1,50,000 and handed it over to the authorised representative of the respondent-company. The respondent-company delivered it to HCL for purchase of copper bars. On June 10, 1992, the respondent-company issued a receipt- cum -letter acknowledging the payments made by the petitioner by way of two demand drafts to the value of Rs. 2,80,000, to the respondent-company as loan on interest at the rate of 15 per cent. per annum payable quarterly. The respondent-company neither repaid the loan amount nor paid any interest but has acknowledged the said outstanding amount to the petitioner vide issuing letters dated March 7, 1994, August 20, 1995, and also July 26, 1997. The petitioner came to know that in the manner in which the affairs of the respondent-company are managed it will not be in a position to repay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. Awdesh Kumar was in service and, therefore, he could not also look after the affairs of the company, and thus the entire management was under Mr. V.N. Tandon who virtually acted as the sole director of the company. It is alleged that in the books of account of the respondent-company, the name of Mr. H.N. Tandon, the petitioner, appears only in the year ending March 31, 1993, as a creditor of Rs. 10,000 which has been shown to be paid in cash to the company. Mr. V.N. Tandon manipulated this entry and no reason has been given as to how and why the amount was taken from his brother-in-law in the year 1992-93. This entry continued up to the year 1993-94 and is being adjusted in the books of account by transfer to the accounts of his wife Smt. Krishna Tandon. The company also maintains the accounts of Smt. Krishna Tandon and in which it is shown that on May 29, 1992, a sum of Rs. 1,30,025 was received from her by bank transfer and on June 8, 1992, a sum of Rs. 1,50,000 was received by bank transfer. A bank cheque was issued in favour of Smt. Krishna Tandon for a sum of Rs. 1,30,025 on May 29, 1992, and, therefore, a credit balance of Rs. 2,50,000 remained to be paid by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice start with the caption "Repayment of loans advanced to the company" and when the details of the amounts have been given as Rs. 1,30,025 by cheque No. 584929 dated May 29, 1992, and an amount of Rs. 1,50,025 by cheque No. 584931 dated June 8, 1992, and contains demand to pay amount with interest at the rate of 15 per cent to be compounded quarterly within fifteen days failing which he shall be free to start legal proceedings against the company. 8. The submission of counsel for the respondent is that the notice served on the company cannot be held to be a legal notice for constituting a ground under section 433( e ) of the Act for filing the company petition on assertion that the company is unable to pay its debts. 9. Section 434(1)( a ) of the Act creates a presumption that the company is unable to pay its debts, if a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company, by registered post or otherwise at its registered office, a demand under his hand requiring the company to pay the sum so due and after service of the notice the company has for three weeks thereafter negle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) of section 433 of the Act. The creditor without there being any presumption drawn on account of the service of notice under section 434(1)( a ) can prove the fact that the company is unable to pay its debt. The creditor/petitioner can satisfy the court by placing relevant material and evidence on record that the company is unable to pay its debt and on such proof, a winding-up order can be passed by the court under section 433( e ) of the Act. 11. Coming to the merits of the case, the claim of debt against the company is made on the basis of two transactions which have been said to be effected by issuance of demand drafts in favour of HCL by the petitioner and non-payment of that amount by the respondent-company. In reply submitted by the respondent-company, it is alleged that there is no amount due from the company to the petitioner, in fact the cheques mentioned in the notice, i.e., No. 584929 dated May 29, 1992, and No. 584931 dated June 8, 1992, by which demand drafts were purchased and issued by the petitioner s wife Smt. Krishna Tandon. The relevant entries relating to the cheques find place in the books of account of the company, in the account maintained of Smt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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