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TMI Blog2012 (9) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner cannot coerce the company to make the said payment especially in view of the fact that the payments are not immediately due. For the aforesaid reasons, the petitioner has failed to make out a case. The petition being devoid of merits is dismissed. - CO. PETITION NO. 219 OF 2010, CO. APPLICATION NOS. 977 OF 2010 & 533 OF 2012 - - - Dated:- 2-7-2012 - RAVI MALIMATH, J. Sagi P. John for the Petitioner. Perikal K. Arjun and U. Abdul Khader for the Respondent. ORDER 1. This Company Petition is filed under Section 433(e) and (f) along with section 439 of the Companies Act, 1956 seeking winding up of the respondent Company and the other consequential reliefs. 2. The case of the petitioner is that he is one of the Promoters and Directors of the respondent Company and he resigned from the Board of Directors of the respondent Company with effect from 1.2.2010. A copy of the resignation dated 1.2.2010 along with the postal receipts and acknowledgements are produced as Annexures-C, D and E. 3. The contention of the petitioner is that an amount of Rs. 1,58,01,468/- is still lying to his credit in the Share Application Money Account in the respondent Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Bank that he would be investing a further sum of Rs. 1.5 crores as his contribution to the respondent Company, but he has failed to do so and on his failure to do so, the present petition has been filed in view of his inability and his desire to withdraw the money. That shares have been allotted against the share application money to the petitioner as well to the other Promoters on 20.9.2010 and hence, the request for refunding the share application money does not arise for consideration. It is further contended that the share application money constitutes a part of the paid up capital of the Company and it cannot be returned without following the procedure as contemplated under Sections 100 to 104 of the Companies Act, 1956 viz., the same could be done only with the approval of the shareholders by means of a special resolution and its confirmation by this Court. It is the further case of the respondent Company that the petitioner by his letter, dated 4 September 2008, addressed to the HDFC Bank has undertaken that he will be fully involved in the day-to-day business of the respondent Company and that there will be no dereliction of duties on his part and in order to cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice is issued, it is not open to the respondent to state that it is now willing to issue shares. 13. In the judgment relied upon, the petitioner gave a loan for a period of 2 years along with interest at 22% per annum. Upon the petitioner's request for redemption of his loan with interest, the respondent Company instead of redeeming the loan, offered to convert it into equity shares in the petitioner's favour and also agreed to appoint the petitioner as an Executive Director. That in spite of repeated requests neither the shares were issued by the respondent Company nor the petitioner was made a Director. Criminal proceedings were also initiated against the respondent Company. Under these circumstances, the petitioner filed for winding up of the respondent Company In this background, the Court was of the view, that in terms of the written statement, there is a willingness to issue the shares but no shares had actually been allotted in terms of para 23 of the judgment. In para 21 of the judgment as relied upon by the petitioner, what the Court had to say was that when the allotment of shares is not made within the prescribed period, money has to be refunded to the applicants. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent does not deny that the amount is due, the debt is admitted. As could be seen from para-11 of the statement of objections, they have stated that the amount claimed by the petitioner is not due for payment. They have not stated that the amount is due now. Hence, the date of repayment is not established. There is no material to show as to when the amount actually becomes due. It is not a debt at present. It may be a debt in future. Under these circumstances, to place reliance on para-11 in support of the petitioner's case, is unacceptable. Hence, the said contention of the petitioners cannot be accepted. 18. That even if the Statement of Objections is to be accepted, the same would not be a debt due as on the date of filing of the petition. This Court in the case of P.K. Varghese v. J.T.V. Metal Finishers (P) Ltd. [1988] 63 Comp. Cas. 644 (Kar.) while placing reliance on the judgment of the Hon'ble Supreme Court in the case of Madhusudhan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [[1972] 42 Comp. Cas. 125 (SC) held at Para 4 as follows:- "4.** ** ** The tenability of the defence depends on the evidence led by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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