1. Heard Sri Amit Shukla, learned counsel for the petitioner and Sri Chandra Bhan Gupta, learned counsel for the respondent company.
2. This winding up petition filed under section 39 of the Companies Act, 1956 on the ground that company is unable to pay its debts. In paragraph no. 5 of the petition, it is stated that on 25th August, 2007 the petitioner's firm on the request of respondent company had made an inter corporate deposit of Rs.3,00,000/- by Cheque No.156141 of Canara Bank, Kalyani Devi Branch, Allahabad which carried interest @15% per annum. In support of this averments, the petitioner has filed a copy of his bank account in Canara Bank which shows that the aforesaid cheque was cleared on 25th August, 2007 in the account of the respondent company.
3. In paragraph 6 of the counter affidavit dated 6th February, 2014 filed by Sri Rajeev Kumar, director of the respondent company it is stated that the respondent company has not received any amount from the petitioner. The said paragraph has been denied in paragraph no. 3 of the rejoinder affidavit dated 24th March, 2014 and in support thereof original copy of a certificate dated 8th March, 2014 of Canara Bank in respect of transaction in question has been filed. The Canara Bank has certified that the Cheque No.156141 dated 24th August, 2007 for Rs.3,00,000/- favouring M/s Pioneer Fabricators (P) Ltd. was presented in clearing by Allahabad Bank, Kalyani Devi Branch, Allahabad and the same was debited to the petitioner's OD A/c No. 12161 on 25th August, 2007.
4. Thereafter the respondent filed a supplementary counter affidavit of the Director, Rajendra Kumar Singh, dated 20th April, 2014, taking a new stand in paragraph 6 that the cheque was deposited in the joint venture firm account by the respondent. In paragraph no. 7, it is stated that the disputed amount has been returned to the petitioner by the joint venture firm. This paragraph has been sworn partly on personal knowledge and partly on legal advise. Thus, it is admitted to the respondent company that cheque no.156141 dated 24th August, 2007 for Rs.3,00,000/- of Canara Bank, Kalyani Devi Branch, Allahabad was received favouring the respondent and the same was encashed on 25th August, 2007 which according to the respondent has now been returned by a joint venture firm. The stand taken is in contradiction to the initial stands that no amount was taken from the petitioner. Thus the denial by the respondent is vague and without supported by any evidence. The respondent is a private company but it has neither filed its audited balance sheet nor the proof of returing the amount. In paragraph 8 of the rejoinder affidavit dated 29th May, 2014 the petitioner has stated that he has not received even a single penny from the respondent or the alleged joint venture.
5. After the arguments were concluded, the learned counsel for the respondent submits that a last opportunity may be afforded to submit proof of return of money to the petitioner as well as audited balance sheet of the company for all the relevant years.
6. Prayer is accepted. A week's time is granted to the respondent company to file the documents as mentioned above.
7. List peremptorily on Tuesday, i.e. on 19th August, 2014.
Order Date :- 8.8.2014 Mukesh (Surya Prakash Kesarwani,J. )