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TMI Blog2017 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... published as directed in two newspapers as also the Gazette. 3. Be as it may, the counsel for the respondent company on 3-6- 2016 sought time to file reply to the winding up petition, post admission. The prayer was allowed on payment of cost of Rs. 50,000/-. In compliance, the reply to the winding up petition has been filed. 4. In response to the case set up by the petitioner company in the winding up petition, one defence of the respondent company is that the alleged debt is non existent and in fact the payment of Rs. 20 lacs was towards the liability of one Clean Green Energy Private Limited (hereinafter `the CGEPL') to the respondent company paid by the petitioner company under an arrangement so to say as Arun Kumar Jain, Director of the petitioner company also a shareholder/ director in the CGEPL, CGEPL had entered into a consultancy contract in relation to a Solar Power Project with the respondent company on 24-7-2010. In terms of the payment scheduled thereunder a sum of Rs. 20 lacs was payable to the respondent company by CGEPL as a first tranch. The payment of Rs. 20 lacs in the account of the respondent company on 23-8-2010 by the petitioner company controlled by Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a binding contract. The e-mail dated 18-8-2010 is not even remotely an expression of the respondent company's readiness to do or to abstain from doing anything. It is neither certain nor definite-an essential characteristic of a proposal. No acceptance could possibly be made thereof. It was not. No contract could have thus been formed-as was not. It has been submitted that however the petitioner company following the request for financial help by the respondent company in Alok Pareek's e-mail of 18-8-2010 on the basis of oral negotiations made over as loan to the respondent company by way of RTGS a sum of Rs. 20 lacs credited to its bank account with IDBI Jaipur on 23-8-2010. As orally agreed the term of the loan was one month and it was to carry interest @ 36% p.a. Mr. Sandeep Taneja submitted that the defence set up by the respondent company on the notice dated 17-11-2010 and the winding up petition being premature is on its own ipse dixit, false and completely without merit. 6. It has been submitted that the petitioner company, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Power Plant by CGEPL. The agreement was signed by Alok Pareek as director of the CGEPL. And vide letter dated 13-8-2010 addressed to M/s. Rudraksh Energy as director of the CGEPL, Alok Pareek requested for the identification and acquisition of land in Naukh Area for the purpose of 5 MW Solar Power Plant. M/s. Rudraksh Energy raised bills toward CGEPL for consultancy services. It has been submitted that if at all the CGEPL had entered into an agreement on 24-7-2010 with the respondent company for consultancy services in setting up a 5 MW Solar Power Plant, there was no occasion for the CGEPL to have entered into a subsequent agreement dated 26-7-2010 with Rudraksh Energy which was an established solar power consultancy firm promoted by one D.S. Agrawal, a retired Chief Engineer from Rajasthan State Electricity Board. Rudraksh Energy. Contrarily the respondent company was engaged in the business of dairy and did not have any expertise in Solar energy to be given consultancy field. 7. It has been submitted that shorn of all the above false and imaginary facts taken as defence to the winding up petition in the reply to the winding up petition, the respondent company has not disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not disputed on substantial and/ or bonafide grounds, the court should order a winding up of the defaulting respondent company. Mr. Sandeep Taneja submitted that in the case at hand the loan amount of Rs. 20 lacs having been admitted by the respondent company and it having not repaid it despite a notice for winding up under the Act of 1956 and instead raising false pleas, outlandished and misleading defence on fabricated and forged documents, the winding up of the respondent company be directed for reasons of its inability to pay its debts in the course of its business and in public interest. 10. Mr. Amol Vyas for the respondent company reiterated the reply to the petition emphatically submitting that the relationship between Arun Kumar Jain, director of the petitioner company and Alok Pareek, director of the respondent company was multifaceted and complex. Their individual actions cannot be seen in isolation but even when apparently distinct with reference to a company, whether CGEPL or the respondent company ASK Dairies were interrelated. The winding up petition is based on a mechanical segregation in an attempt to benefit from one part of inter connected transactions while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a substantial, genuine and bonafide dispute can be considered as a defence in the winding up petition and not one that is spurious, speculative, illusionary or misconceived. 14. In the case of P.R. Parry Vs. M/s. Cynotech Bioproducts Pvt. Ltd. [AIR 1999 (Karnataka) 331] it has been held that in case the company fails to discharge its liability on account of a clear debt even after lapse of considerable time from service of the notice of winding up presumption of commercial insolvency of the company would arise and a winding up order follow until a bonafide dispute is made out. 15. In the instant case the facts are telling. Admittedly a sum of Rs. 20 lacs was transferred by the petitioner company from its account maintained with the HDFC Bank Ltd. Raj Nagar Branch Gaziabad to the respondent company's bank account 142655100000347 with the IDBI Bank at Jaipur. A notice for winding of the respondent company albeit under Section 433(e) of the Act of 1956 came to issue by the petitioner company on 17-11- 2010 for non payment of the amount advanced despite the period for which the money was lent having expired, with one month lapsing. The notice for winding up in event of non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2010 is thus of no avail. The e-mail cannot relate to the contract of loan coming into force on 23-8- 2010 with the transfer of Rs. 20 lacs by the petitioner company to the bank account of the respondent company. The defence of the respondent company that the loan amount of Rs. 20 lacs was not payable before 31-12-2010 rendering both the notice of 17-11- 2010 and winding up petition consequentially filed on 21-12-2010 premature is without substance and liable to be rejected . As this is. 19. As far as other extreme spectrum of the defence of the respondent company that the amount of Rs. 20 lacs was payment by the petitioner company of the liability of CGEPL to the respondent company is concerned, it is audaciously and shockingly both false and without legal substance. For one, the petitioner company incorporated under the Act of 1956 is an independent juristic personality distinct, and different from its director/s/ promoter/s and shareholder/s. The other business interests of the shareholder/s/ director/s/ promoter/s of the petitioner company thus in law cannot have any bearing on the rights, obligations and liabilities of the petitioner company. In this context, the doings of ..... 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