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TMI Blog2018 (10) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,000 for the dishonoured cheques and ₹ 7,00,000 being the balance which admittedly remains unpaid. The winding up petition is, therefore, admitted for the sum of ₹ 12,00,000/-. On the sum of ₹ 5,00,000/-, the petitioner is entitled to interest at the rate of eighteen per cent as per the provisions Section 80 of the Negotiable Instrument Act, 1882 as applicable for the dishonour of cheque being a negotiable instrument. The interest will be payable on the said sum of ₹ 5,00,000/- from the date of dishonour of the cheque, that is, 1st March, 2013. So far as ₹ 7,00,000/- is concerned, the petitioner is entitled to interest at the rate of ten per cent from the date of the winding up notice, that is, 11th January, 2014. Both the interest will be payable from the respective dates as above until realization. So far as the balance 20,00,000 is concerned the petitioner’s claim is relegated to suit. It will be open to the petitioner to file a suit in respect of the said sum and in the event such suit is filed within 25th November, 2018, the petitioner will have the benefit of the period from 5th May, 2014 (the date on which the winding up petition was pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poraneous documents in writing to establish the terms and condition of the said financial accommodation. 4) The petitioner says that, in acknowledgment of the financial accommodation and for repayment of the same, the said company had issued a cheque bearing no. 016227 dated 3rd December, 2012 for a sum of ₹ 5 lacs. The said cheque on being presented, however, has been dishonoured due to insufficient funds. The photocopies of the documents showing the reasons for dishonour has been produced by the petitioner being annexed to the petition. 5) Subsequently, by a statutory notice dated 11th January, 2014, the petitioner called upon the said company to pay its outstanding dues to the tune of ₹ 51,17,584/- comprising of principle loan amount of ₹ 32,00,000/- and interest of ₹ 19,17,584/-. The said notice is annexed to the winding up petition. 6) The winding up notice was replied by the said company by its letter dated 6th February, 2014. In the reply, the said company has acknowledged to have received a sum of ₹ 32, 00, 000/- from the petitioner but alleges to have made over five blank cheques and one account payee cheque of ₹ 5,00,000/- towa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner s representatives, namely, Sandip Kedia, Mr. Nayak and Mr. Prajapati. The company says that by adding up ₹ 7,82,324/- (Rs. 5,00,000+ ₹ 2,82,324) with ₹ 25,00,000/- realized by the company by encashing the five blank cheques a sum of ₹ 82,324/- is required to be paid by the petitioner to the said company. 7) The said company has, however, not produced any document to show that there was any agreement between the said company and the petitioner in the manner as alleged in the reply. The purported agreement has been pleaded for the first time in the reply to the statutory notice as there appears to be no contemporaneous document to establish any such agreement. 8) The petitioner has replied to the letter of the said company dated 6th February, 2014 by a letter dated 19th March, 2014 wherein it has denied to have received any payment on account of repayment of loan and have also denied that either ₹ 82,324/- or any amount is due and payable by the petitioner to the said company. In the letter of 19th March, 2014, the petitioner has, however, not specifically dealt with the allegations as to the alleged agreement between itself and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as loan and submits that exact amount of increase is reflected under the heading Loan from Other Companies which goes on to show that the company has received loan from the petitioner and that the same has remained outstanding even in the books of the said company and, as such, the case sought to be made out by the said company regarding repayment of loan should not be accepted being untenable. The petitioner by showing that the blank cheques said to have been made over to the petitioner towards repayment of loan is also an unbelievable story, inasmuch as, the cheque numbers are not in chronology which otherwise would have been had the said company actually made over such blank cheques at a time. There are gaps in between the cheque numbers which the company alleges to have made over to the petitioner as blank cheques. Which the petitioner says would not have occurred had these cheques made over on the same day. 11) On the other hand, the company has annexed photo copies of the five cheques which they says to have been obtained from their bank to show that the said blank cheques which they allegedly made over to the petitioner for repayment were filled in as self cheques for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan agreement on record. These factual assertions require trial. The defence of the company cannot be brushed aside as not bona fide or not in good faith in a winding up petition particularly when the ledger of the said company maintained by Balaji Enterprises has been annexed to the petition. But the fact remains that there has been a dishonour of cheque issued by the said company for a sum of ₹ 5,00,0000. The said company has not been able to show even a prima facie ground that this cheque was issued for any other purpose other than repayment of the loan and there is also no allegation of the company having any other transaction with the petitioner. Moreover, the company has itself admitted to have issued the cheque and has sought to avoid honouring it by alleging that payments from Balaji Engineering Company and Balaji Enterprises has remained for which the company was not under any obligation to honour the said cheque. At any rate Balaji Engineering Company and Balaji Enterprises are two separate entities and any alleged claim of the said company against them are to be proceeded separately against them in absence of any clear and specific agreement or undertaking from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,00,000/-. On the sum of ₹ 5,00,000/-, the petitioner is entitled to interest at the rate of eighteen per cent as per the provisions Section 80 of the Negotiable Instrument Act, 1882 as applicable for the dishonour of cheque being a negotiable instrument. The interest will be payable on the said sum of ₹ 5,00,000/- from the date of dishonour of the cheque, that is, 1st March, 2013. So far as ₹ 7,00,000/- is concerned, the petitioner is entitled to interest at the rate of ten per cent from the date of the winding up notice, that is, 11th January, 2014. Both the interest will be payable from the respective dates as above until realization. 18) So far as the balance 20,00,000 is concerned the petitioner s claim is relegated to suit. It will be open to the petitioner to file a suit in respect of the said sum and in the event such suit is filed within 25th November, 2018, the petitioner will have the benefit of the period from 5th May, 2014 (the date on which the winding up petition was presented) till the date of the judgment with regard to the limitation of its claim. The said company will also get such benefit as to limitation in the event they institute a suit o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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