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TMI Blog2018 (5) TMI 1856X X X X Extracts X X X X X X X X Extracts X X X X ..... , be free to recover the amount as he claims by taking up other remedies available to him under the Civil Procedure Code or any other provisions of law. - S.B. Company Petition No. 27/2016 - - - Dated:- 17-5-2018 - Mr. Justice Sanjeev Prakash Sharma For the Petitioner(s) : Mr. Amol Vyas, Adv. For the Respondent(s) : Mr. S.N. Kumawat, Adv. JUDGMENT/ORDER 1. Instant Company Petition under Section 439 of the Companies Act, 1956 (for short, the Act of 1956 ) has been preferred by one Mr. Rajesh Jalan with regard to M/s Prestige City Developers Private Limited, A Company incorporated under the Act of 1956 as a Private Limited Company having its registered office at 1/SF, Kamal Complex, Panchbatti, M.I. Road, Jaipur. 2. As per the petition, the authorized share capital of the respondent-Company is ₹ 1,75,00,000/- with equity shares of ₹ 10/- which is the paid up capital of 17000000 equity shares. As per balance-sheet of the respondent-Company dated 31/03/2015, it had a total secured loan to the tune of ₹ 2,96,84,530/- and unsecured loan as on 31/03/2014 at ₹ 8,12,37,230/- which has been reduced to ₹ 2,91,95,000/- as on 31/03/2015. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3160880 316088 28370709 23538355 3150000 22026401 413100 2205250 4. The petitioner vide his letter dated 13/07/2016, by adding interest on the aforesaid amount for subsequent years, claims a total amount as against the respondent-Company to the tune of ₹ 1,86,53,747/- as on 01/07/2016 and also claims interest on the same @21% per annum. 5. The respondent, in reply, has refuted claim of the petitioner ans has pointed out that the authorized capital and paid up capital is not disputed. However, the distribution of share capital was between two different groups who had joint together to form the respondent-Company. One group was that of Kedia Saanju Group which had paid up share capital of ₹ 98,61,500/- and the other was that of Jalan Group of whom the petitioner Mr. Rajesh Jalan is a member which had a total share capital of ₹ 71,38,300/-. Thus, each group had 985150 and 713850 shares with face value of ₹ 10/- each respectively. 6. It is further stated by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to which the same could have been considered to be rented out to respondent-Company and further the compliance with statutory provisions more particularly under Section 299 and 300 of the Act of 1956. It is also required to be proved by the petitioner that he was entitled for loading of the interest on the said amount of provided rent. It is stated that while the petitioner was under obligation to place on record or the essential credentials about the same, the non-compliance to the same aspects that the entire claim has been raised in a farcical manner. 8. It is further stated by the respondents that so far as the deduction of Tax at source (TDS) and its deposit with Government treasury, if at all has taken place, cannot give the blanket lever in the hand of the respondent to allege that the Company was under a liability to make payment to the petitioner in an undisputed manner and further he can allege that the Company has become commercially insolvent so as to have become unable to honour the commitment as and when they fall due. 9. The respondent-Company, in its reply has further denied the fact of accepting interest on the amount @21% per annum. In this context, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as the petitioner is concerned, during the earlier proceedings, the learned counsel for the Company had offered to either handover the flats of equivalent value as loan advanced by the petitioner or allow the Company to sell its project and flats constructed by it for the purpose of repayment of loan. However, the petitioner had refused on both the counts. Thus, merely because the petitioner was a Director and advanced loan to the Company and merely because he had opted out from the Board of Directors in 2014, he cannot turn back and put the company on doldrums. 12. The petitioner has taken up case relating to the balancesheets and the auditor s report and has stated that the auditor of the Company has not submitted the report correctly and when a letter was sent to the auditor of the Company by the petitioner, the auditor of the Company has reported that TDS of ₹ 11.22 lacs and interest accrued thereon for the period 2016-17 of ₹ 9.95 lacs for Assessment Year 2017-18 has not been paid and therefore, it is submitted that the respondent-Company is indulged in siphoning of the funds of the Company. 13. It is to be noted that this Court had attempted to get ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in delivering the statutory report to the Registrar or in holding the statutory meeting ; (c) if the company does not commence its business within a year from its incorporation, or suspends its business for a whole year ; (d) if the number of members is reduced, in the case of a public company, below seven, and in the case of a private company, below two ; (e) if the company is unable to pay its debts ; (f) if the Tribunal is of opinion that it is just and equitable that the company should be wound up. (g) if the company has made a default in filing with the Registrar its balance sheet and profit and loss account or annual return for any five consecutive financial years ; (h) if the company has acted against the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality ; (i) if the Tribunal is of the opinion that the company should be wound up under the circumstances specified in section 424G : Provided that the Tribunal shall make an order for winding up of a company under clause (h) on application made by the Central Government or a State Government 15. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the same due to the petitioner. 23. As noted from the aforesaid facts, it is apparent that the amount, which the petitioner had advanced as loan as Director of the Company, has been repaid from time to time which is also admitted from the averments made by the petitioner in his Company Petition. It is accepted by the petitioner that he received an amount of ₹ 55,00,000/- and 10,00,000/- on 09/07/2007 and 10/07/2007 respectively in addition to a cheque of an amount of ₹ 20,709/- on 26/03/2008. The respondent-Company has also offered to pay the dues of the petitioner by securing flats constructed by it. However, as noted, the petitioner has refused to take the said flats. Thus, it cannot be said that the respondent- Company would be deemed to be unable to pay its debts within meaning of Section 434 of the Act of 1956. 24. In view of above, no case is made out to initiate proceedings for winding up of the respondent-Company in terms of Section 433(e) of the Act of 1956. The petitioner would, however, be free to recover the amount as he claims by taking up other remedies available to him under the Civil Procedure Code or any other provisions of law. 25. Conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X
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