North Bengal Neuro Research Centre (P.) Ltd. vs Pawan Kumar Agarwal

Sanjib Banerjee, J.—The petitioners seek winding up of the Company on its refusal to repay loans of combined value of Rs. 6,05,000 obtained between 1997 and 1999, allegedly acknowledged in 2000 and 2003 but not repaid despite issuance of the notice u/s 434(1)(a) of the Companies Act, 1956.

The petitioners assert that they had made the money available to the Company in connection with the construction of a hospital by the Company in Siliguri and that the Company had agreed to pay interest at the rate of 24 per cent p.a. on such loan. The petitioners rely on a letter of 10-10-2000 said to have been issued by the Company and appearing to be signed by Dr. W.W. Chhang, the Chairman-cum-Director of the Company and the apparent admission of the Company found in the second and third paragraphs of such letter:

Detail of the received cheques and cash are as follows:

Sri Pawan Kumar Agarwal, Smt. Mina Devi Agarwal & Smt. Kalpana Agarwal Rs. 1,50,000, 2,50,000 and 1,00,000 vide Cheque Nos. E010760 CWN 49101 and CWN 49083 dated 19-10-1997, 23-10-1997 and 23-10-1997 drawn on Allahabad Bank and United Banks and Rs. 35,000 each vide cheque Nos. SB/Z 181631, CWN 49103 and CWN 49085 all dated 7-4-1999 drawn on Allahabad Bank and United Bank of Siliguri and Rs. 25,000 each in cash from Smt. Mina Devi Agarwal and Smt. Kalpana Agarwal - on 7-4-2000.

At present due to development work in the Nursing Home, our company is not in the condition to repay the loan amount with interest. So our company hereby request you to further extend time to repay the said loan amount with interest within 3 (three) years from the date of this letter of acknowledgment of debt of our company.

The petitioners also rely on cheques for Rs. 6,11,234 and Rs. 10,07,700 said to have been issued by the Company on 1-3-2003 and 3-3-2003 and bearing the same signatures as appearing on the letter of 10-10-2000.

The writing of the date, payee and figures in both the cheques appear to be in the same hand and it is the petitioner''s case that such cheques were not presented for payment on the Company''s representation that it did not have adequate funds in its bank account at the relevant time.

The petitioners next rely on a subsequent letter of September 15, 2003 said to have been issued by the Company wherein the loans appear to have been acknowledged. The second and third paragraphs of such subsequent letter read as follows:

I am also very much grateful to you for not presenting the 2 (two) cheques, which were issued by me in favour of you. Sri Pawan Kumar Agarwal and Smt. Mina Devi Agarwal, amounting to Rs. 6,11,234 and 10,07,700, dated 1-3-2003 and 3-3-2003, cheque Nos. 407835 and 407839 drawn on SBI, Hill Cart Road, Main Branch, Siliguri, of our company, in your respective Bank account for encashment, on my request due to insufficient fund in the company bank account.

By a resolution dated 10-9-2003 in a special general meeting our company further acknowledge the debt of Rs. 6,35,000 (Rupees Six Lakhs Thirty Five Thousand) and promised to pay the same with 24 per cent interest p.a. (compounded quarterly) at earliest possible.

These two letters are the principal documents on which the petitioners found their claim. The petitioners also rely on a letter said to have been issued to the Chairman of the Company in March 2006 which was allegedly refused, but nothing turns on such letter.

In the statutory notice of 28-6-2006 the petitioners narrated the circumstances in which they claim the loans were made and in Paragraphs (viii) and (x), the petitioners referred to the letters of 10-3-2000 and 9-9-2003. The petitioners also referred to special general meetings of the Company having been held on 7-10-2000 and 10-9-2003 pursuant to which the two letters were allegedly issued by the company. The cheques said to have been issued by the Company were also mentioned in the statutory notice.

In the written response of 14-7-2006 the Company denied the petitioner''s claim and alleged that the petitioners had been allotted shares of and in the Company against applications that the petitioners had made and the petitioner was aware of the allotments. It was asserted by the Company that by the year 2001 the three petitioners had been issued shares of phase value of Rs. 1,85,000. Rs. 3,10,000 and Rs. 1,60,000, respectively. The company''s reply dealt with the specific paragraphs of the statutory notice but in dealing with paragraphs (viii) and (x) of the statutory notice, the Company''s response is as follows:

That the statements, allegations and claims made in paragraphs (vii) to (xiii) are whereby false, prevariated, and the same are knitted out of oblige motive to cause harrn to my clients (sic). The statements made in those paragraphs are vehemently denied.

In the affidavit used in these proceedings, the Company relied on what it claims to be an extract from its register of members though such document has not, as it generally cannot be, been independently authenticated. The Company has next relied on a form No. 2 said to have been deposited with the Registrar''s office in March 1993 evidencing the issuance of shares to the second and third petitioners on 3-3-1993. Again, the Company has relied on what appears to be the Company''s copy of the document without the Company taking the trouble of obtaining a certified copy of such statutory form from the Registrar''s Office, as is generally done to establish the authenticity of such document and the contemporaneous filing thereof.

The Company has also appended its annual returns for the years ended 30-9-1996 and 30-9-2001 said to have been filed by it with the Registrar. But the Company has again chosen to rely on documents that it claims it filed without obtaining authenticated copies thereof from the Registrar''s records. But even if the returns and statutory forms relied upon by the Company are taken at face value, it does not appear that such documents can fasten the petitioners with knowledge of having become shareholders of the Company, particularly in the absence of the company otherwise being able to establish such allegation. According to the Company, it issued some letters to the petitioners, requiring the petitioners to claim their share certificates. Again, the Company has not been able to establish that such letters were issued to or received by the petitioners or any of them.

In the body of the Company''s affidavit, there are two Paragraphs 17 and 19 that deal with the relevant paragraphs in the petition where the two letters of 10-10-2000 and 15-9-2003 have been referred to. The company claims that such letters were part of the documents fabricated by the petitioners. The company claims that such fabricated documents were the subject-matter of criminal proceedings instituted by it. Yet the company does not deny the signature of its Chairman in the two documents nor does it otherwise demonstrate that such documents had not been or could not have been issued.

In fact the copies of the criminal complaint lodged by the company form part of the company''s affidavit in these proceedings. Annexure ''A'' to the company''s affidavit is a petition filed in C.R. Case No. 573 of 2006 under Sections 415, 406, 425, 464 and 34 of the Indian Penal Code. In the 21 paragraphs in such complaint, the company has made allegations that would bring the complaint within the folds of the various provisions of the Indian Penal Code referred to therein, without the principal matter of the nature of fabrication of the two primary documents being referred to and without the signature of the company''s Chairman on such documents being denied. In any event, the principal thrust of C.R. Case No. 573 of 2006 is in respect of the two cheques. The other document appended to the Company''s affidavit is an application u/s 94 of the Criminal Procedure Code for issuance of a search warrant for recovery of valuable securities and documents. Such miscellaneous application arises out of C.R. Case No. 573 of 2006 and the valuable documents referred to in such application are the two cheques relied upon by the petitioners in these proceedings. It is also a matter of some significance that such criminal complaint was lodged after the winding up proceedings were instituted and after the company obtained directions for filing its affidavit herein.

The company had a chance, upon the petitioners'' assertion in the statutory notice, to explain in its response of 14-7-2006 as to how the letters of 10-10-2000 and 15-9-2003 came to be. The company''s sparse and inadequate denial is found in the relevant part of the response quoted above. The company next had a chance to challenge the two letters in the criminal proceedings that it instituted primarily against the two cheques. The complaint has little or nothing to offer in respect of the two documents of 10-10-2000 and 15-9-2003. Finally, in the opposition used in these proceedings, the company has merely referred to the criminal proceedings launched by it and has used the word fabricated'' to assume that the use of such word and the filing of the criminal complaint were enough for the Company Court to refuse to receive this petition.

The company''s defence appears to be dishonest and beyond comprehension. The company has not relied on any authenticated documents in support of its defence. The letters of 10-10-2000 and 15-9-2003 appear to be staring at the company''s face and in the absence of the company having dealt with it in its response to the statutory notice and in the two subsequent sets of pleadings filed by it, the impression that is sought to be given is without basis.

Ordinarily, the petitioners would have been entitled to an order admitting the petition and permitting the company to pay off within a stipulated time to ward off advertisements. But in view of the fact that criminal proceedings have been instituted (which, in proceedings u/s 482 of the Cr.P.C., appear now to have been stayed by this Court), the company is being afforded a chance to secure the entire claim of the petitioners, inclusive of interest not at 24 per cent as the petitioners claim, but at 12 per cent per annum reckoned from the second of the two letters which appear to have been issued by the company on 15-9-2003 within a period of three weeks from date.

The petition is admitted for the sum of Rs. 6,05,000 together with interest at the rate of 12 per cent per annum from 15-9-2003. If the company furnishes security of the entire sum, inclusive of interest, upto the date of furnishing of security, in favour of the Registrar, Original Side, the petition will remain permanently stayed and the claim of the petitioning-creditors will stand relegated to a suit. In such event, the security will be held to the credit of the suit in the event such suit is instituted within a period of three weeks from the date of intimation by the company to the petitioners that security in terms of this order has been furnished. In default of the security being furnished within the time permitted, the petition will be advertised once in the Statesman and once in the Ajkal. Publication in the Official Gazette will stand dispensed with. The advertisements will indicate that the matter will be returnable on the next available Court day four weeks after the publication. In the event the petitioners fail to file the suit within the time permitted after receipt of information of security having been furnished, the company will have liberty to obtain discharge of the security.

Urgent photostat certified copy of this order, if applied for, may be supplied to the parties on their compliance of all the requisite formalities.