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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 ..... tioner Mr. Rajesh Jalan claims to have provided funds to the respondent-Company in the form of unsecured loan in the year 2005-06 with the condition that the financial assistance shall be repayable on demand and would carry interest. It is stated that for the period from 01/04/2009 to 31/03/2016, the petitioner had advanced substantial amount as unsecured loan. The details of the said amount as well as interest debited in respondent-Company's account together with the amount paid by cheque or by depositing TDS has been detailed out as under:- 1 2 3 4 5 6 7 FY Receipt Payment Rent Received Interest Received TDS on Rent TDS on Interest 2006-2007 2000000 5800000 266520 27185 2007-2008 6520709 2500000 900000 245735 139050 25311 2008-2009 2000000 900000 446301 139050 45969 2009-2010 200000 2179500 900000 1035858 90000 103586 2010-2011 1725000 450000 1773160 45000 177316 2011-2012 7533855 2452497 245250 2012-2013 3500000 4288172 428817 2013-2014 1500000 1500000 4614198 461420 2014-2015 13350000 300000 3743080 374308 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner opted out from continuing to remain on the Board of Directors, he cannot be allowed to ruin the Company which is ready to pay out its debts. It is stated that apart from the present petition filed by the petitioner Mr. Rajesh Jalan, his brother has also filed one application under Section 397, 398 before the Company Law Board alleging mismanagement of the Company. The respondent has submitted that the facts stated are vehemently disputed and denied. It is further informed that the purported debit of Rs. 9 Lac and Rs. 2,45,735/- made by the petitioner has been on account of his own figment of imagination and hence, does not give any right or privilege to the petitioner to fasten this purported liability in a unilateral and arbitrary manner. Further, the petitioner is under obligation to place on record the requisite documents and credentials by which it can establish that the flat at "Ballyhigh" in Kolkata belongs to him and further since it is alleged to have been rented out, the pertaining rent/lease deed pursuant to which the same could have been considered to be rented out to respondent-Company and further the compliance with statutory provisions more particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company, through which it could gather finances for repaying the loan amount, has been blocked. Resultantly, while on one side a restraint order has been passed in the present petition, the prayer has been made by the petitioner that the Company is not able to pay out its debts and should therefore be wound up. 11. The respondent-Company has further stated that the interest amount of unsecured loans was not to exceed 15% as per the resolution of the Board. In the circumstances, it is stated that the Company is not liable to pay to the petitioner the amount as claimed. Further, it is argued that for claiming the said amount, the present winding up proceedings could not have been undertaken and it is a sheer abuse of the process of law and the Company is a running Company and has been able to reduce its debts continuously. Apart from the petitioner, the loans of the other loanees have been meted out by the Company and the other claimants like the Directors, who were required to be paid their dues by the Company, 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any expertise in the same. Also the Petitioner is suffering from various ailments and it is not possible for him to travel to Jodhpur. The Petitioner does not reside with his children as his two daughters are married and settled in U.S.A whereas third daughter is studying in U.S.A and Petitioner is the only person in the family to look after his business in Jaipur. In these facts and circumstances, the proposal given by the Respondent Company is not acceptable." 14. Having noted above, the question before this Court is whether the Company Petition filed in terms of Section 439 of the Act of 1956 be allowed and the Company be wound up in terms of Section 433 of the Act of 1956. Section 433 of the Act of 1956 provides as under:- quote section 433 433. Circumstances in which company may be wound up by Tribunal :- A company may be wound up by the Tribunal, (a) if the company has, by special resolution, resolved that the company be wound up by the Tribunal ; (b) if default is made 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 busin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecured creditor to whom the Company is indebted to a sum exceeding Rs.One Lac as due. However, a close look at Section 434(1)(a) i.e. the deeming clause, shows that for arriving to a conclusion that the Company would be deemed to be unable to pay its debts, following ingredients are required to be considered:- (i) The company has a creditor by assignment or otherwise (ii)The Company is indebted to whom for a sum exceeding Rs.One Lac as due. (iii)The said creditor has served on the Company by methods mentioned a demand to the Company to pay the sumeso due. (iv) The Company has neglected to pay the sum for three weeks and (v) or is neglected to secure the amount or has compounded for it to the reasonable satisfaction of the creditor. 21. If we examine case of the petitioner, it falls in the category (i), (ii) and (iii). 22. The question arises whether it can be said that the Company has neglected to pay the same to the petitioner or has not secured 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 admit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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