ASU SINGH RAJPUT Vs. GEHLOT ENTERPRISES LTD.

JUDGEMENT

(1.) This winding up petition has been filed under sections 433 and 439 of the Companies Act, 1956. It is submitted by Mr Paras Kuhad, learned counsel, that respondent company through Shri Kishore Singh, Managing Director, on behalf of the National Motors Company for Gehlot Enterprises Ltd., took a loan of Rs. 1,50,000 on 26 Oct., 1989, and executed a promissory note in favour of the petitioner, photostat copy of which is Annexure 1 and, thereafter, original promissory note has also been placed on record. The interest to be paid was at the rate of 18% per annum. The above mentioned amount alongwith interest remains unpaid, inspite of several requests made for payment of the same. Statutory notice dated 18 Dec., 1991 (Annexure 2), under section 434 of the Companies Act, was served on the respondent, calling upon it to pay the above mentioned amount alongwith interest at the rate of 18 per cent. per annum. This amount comes to Rs. 2,08,500 upto 25 Dec., 1991. However, inspite of the receipt of the said notice, the respondent company has failed to pay the said amount. The respondent company desired to have a photostat copy of the promissory note executed by Shri Kishore Singh, which was sent by the petitioner's Advocate, vide letter dated 23 Jan., 1992 (Annexure 3). Thereafter, the respondent company, vide its reply dated 10 Feb., 1992 (Annexure 4), sent through its Advocate, denied the execution of the said promissory note. Thus, the respondent company has become commercially insolvent and is unable to pay the debts within the meaning of section 434 of the Companies Act.

(2.) It is submitted by Mr. S.N. Kumawat, learned counsel, that the so-called promissory note dated 26 Oct., 1989, is not a promissory note, but a mere forged document and on the basis of the forged document, no debt can be recovered and the winding up petition is, therefore, not maintainable. It is further submitted that on the same document, the rate of interest and name of Asu Singh have been written subsequently. It is also submitted that neither the respondent company borrowed Rs. 1,50,000 from the petitioner, nor executed any promissory note in his favour. It is pointed that the petitioner does not have any money-lending licence under the Money Lending Act. Therefore, he cannot legally lend any money to anyone and the petition is not maintainable since the petitioner is not entitled to file this petition. For the sake of argument, even if the document is treated to be a promissory note, it does not bear sufficient stamps and is, therefore, inadmissible in evidence and no company petition can be filed on the basis of such document. It is further pointed out that the alleged promissory note (Annexure 1) is a blank receipt, which was given by Kishore Singh to Mr Purushottam Modani, who is a broker and deals with money-lending business. This blank document was lost from the office of Mr Modani, when there was a raid from Income-tax Department in his office on 13 Aug., 1990. An FIR regarding the same was filed against the petitioner, Asu Singh Rajput, by Mr Modani, on 20 Feb., 1992, by registered post, which was received at Shastri Nagar Police Station, on 6 March, 1992. A photostat copy of the said report is Annexure R/1. The FIR, chalked out on 4 May, 1992, is marked as Annexure R/2. This matter is under investigation by the police. It is also pointed out that the petitioner never demanded any amount or interest earlier than the notice dated 18 Dec., 1991 (Annexure 1), sent through his counsel. The respondent was shocked to receive the said notice and, therefore, obtained photostat copy of the so-called promissory note and, thereafter, sent the reply through his Advocate. It is contended that Annexure 1 is a forged document and there is bona fide dispute between the parties. The respondent is not liable to pay any amount, on the basis of false and disputed document. The petitioner has, in fact, avoided filing of regular civil suit, where he will have to come in the box and produce the evidence to prove the forged document (Annexure 1) and fully knowing that it will not be possible for him to do so, he has filed this winding up petition, where necessity of any oral evidence is not required. Thus, a via media has been found to avoid scrutiny of the document. It is further contended that a mere look with naked eye at the alleged promissory note shows that three persons have written the document, which goes to prove that a forgery has been committed. There is also deference of ink.

(3.) It is submitted by Mr Kuhad, learned counsel, that, even if document is not treated to be a promissory note, it is a receipt, on the basis of which, these proceedings have been appropriately filed. The learned counsel has vehemently denied the allegations of forgery and submitted that there is no bona fide dispute, as claimed on behalf of the respondent.