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TMI Blog2019 (3) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... d payments were made vide cheques in March 2007. It is the case of the petitioner that the cheques were duly honoured and the said amounts were duly credited in the bank account of the respondent. It was also orally agreed that the respondent will pay interest @12% per annum to the petitioner from November 2007 to January 2009. Respondent company has returned part payment of Rs. 31,50,000/-. It is further pleaded that in the month of March, 2008 the respondent company issued TDS certificate to the petitioner for a sum of Rs. 1,41,644/-. After making adjustment the remaining balance is of Rs. 39,80,416.24 as on 03.04.2010. It is also stated that the case of the respondent company came under scrutiny with the Income Tax Department regarding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company on 15.1.2009 in terms of the order dated 14.1.2009 of the Division Bench of this court. He states that these entries have been introduced by the said Mr. R.P. Mittal who has thereafter disappeared taking away the books of accounts and records. He submits that even for the Income Tax Returns the respondent had no option but to rely upon the records of the old management. He further states that new Management has not admitted any outstanding dues of the petitioner. He has relied upon averments to the said effect in the two affidavits filed, namely, in March 2018 and in October 2018. He also points out that the petitioner has also filed a suit for recovery of this amount prior to filing of the winding up petition. He states that as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the preliminary objections/submissions that the entire case of the petitioner is based upon fraud, and has been filed at instance of Mr.R.P.Mittal, therefore, the present petition deserves to be dismissed at the threshold. At this stage, it is pertinent to note that the company is a juristic person and has to act through its officers. In present case it is deliberately not mentioned by the plaintiff, as to who from the side of respondent company has orally promised the interest to them. The amount which is being claimed by the Petitioner, as being paid towards the interest is actually an entry created by Mr. R.P. Mittal so as to suit himself and the Petitioner, whereby they could build up the story of alleged loan. At this stage it is pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The two affidavits have been field as noted above on March 2018 and October 2018. In the affidavit filed in March 2018 a plea has been taken by the respondent that Mr.R.P.Mittal resorted to large scale removal of the records of the respondent company which was also recorded in CCTV Cameras. The snapshots have been annexed. Hence, it is stated that the complete record of the respondent company and its accounts for the Financial Year 2007-08 were not even audited, the new management had no option but to go by the Income Tax Return filed by Mr.R.P.Mittal without in any manner ascertaining the authenticity and genuineness of what was recorded by Mr.R.P.Mittal when he was exclusive incharge of the respondent company. Hence, essentially the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Institutions Act, 1993 (hereinafter called `the RDB Act'). ..... 11. The court held as follows:- 30. Therefore, it cannot be said that RDB Act covers the field for winding up an insolvent company and, Therefore, the contentions of Mr. Tripathi are misconceived and are accordingly rejected. The contention that the petitioner could chose one of the remedies available in case where two or more than two remedies are available is applicable when the remedy provided for is one and the same but when two different remedies are provided for two different reliefs, in that event the plea of election of remedies is not applicable. We, Therefore, hold that the winding up court is concerned with the issue as to whether or not a company could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed a suit being CS(OS) 822/2011 against the respondent company. It is also a matter of fact that the respondent company has filed a suit being CS(OS) 161/2012 against Mr.R.P.Mittal and his associates including the petitioner. 14. Keeping in view the above, in my opinion, an opportunity should be given to the respondent company to prove its case before a civil court. However, it is necessary to secure the claim of the petitioner. The petitioner has claimed outstanding amount in the notice sent for a sum of Rs. 39,17,007/- which includes interest @ 12% per annum. There is some merit in the plea of the learned counsel for the respondent that the claim of interest is based on an alleged oral agreement between the parties and is not in any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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