- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION No. 680 OF 1998 Galore International Project ) Pvt. Ltd., incorporated under ) the Companies Act, 1956 having) its registered office at Ruby ) House, J.K. Sawant Marg, ) Dadar (W), Mumbai 400 028. ) Petitioner Vs. M/s. Condequip Engineering ) (India) Ltd., Condequip House,) Harmony, E-Wing, CTS No. 413, ) M. G. Road, Kandivli (W), ) Mumbai-400 067. ) Respondent Mr. K. Jaswant i/b Mukesh Jain, Advocate for the petitioner. None for the respondent. CORAM : A. M. KHANWILKAR, J. DATE : FEBRUARY 6, 2008. ORAL JUDGMENT . None appears for the respondent though served. 2. The petitioner’s claim is founded on admission of the respondent regarding liability to repay sum of Rs.50 lakhs, being the principal amount which was paid to the respondent by the - 2 - petitioner by way of financial assistance, as was agreed between the parties. The respondent on its letter-head which is signed by the authorized officer of the respondent dated March 18, 1996 (Exhibit "B") addressed to the petitioner, as placed on record disclosed that they were taking financial assistance of Rs.50 lakhs and were aggeeable to pay interest @ 3% per month till repayment. The fact that payment was received by the respondent, is established from the contemporanious record, in particular from the correspondence of the respondent company itself. In the letter dated March 26, 1996 the respondent addressed communication to petitioner to place on record that they were forwarding six share certificates bearing 5522200 number of shares. The respondent has also placed on record the 5 sets of bills of exchange which were also forwarded aggregating Rs.51,48,780/-. In addition the respondent also forwarded 2 cheques to the petitioner, which were drawn in favour of the petitioner, one in the sum of Rs.50,00,000/- and another for Rs.95,205/-. The latter cheque was towards payment of interest component. The former cheque was post dated, payable on 27th May 1996. According to the petitioner, the respondent has - 3 - failed to repay the principal amount of Rs.50 lakhs, which was availed by the respondent as per the understanding arrived at between the parties. However, in spite of notice, the respondent has failed and neglected to repay that amount. In the circumstances, petitioner has been driven to file this petition against the respondent company. Suffice it to observe that the present proceeding instituted by the petitioner is essentially relating to the cheque which has been dishonoured in the sum of Rs.50 lakhs which represented the principal loan amount of Rs.50 lakhs. 3. The respondent after service of notice has filed the reply affidavit. The first point stated in the reply affidavit is that the petitioner has already filed Summary Suit No. 3244 of 1998 for recovery of the amount in question. However, that will not, in my opinion, preclude the petitioner from pursuing the present remedy available to the petitioner. The second point stated in the reply affidavit is that in so far as merits are concerned, the respondent has plainly denied any liability, as alleged by the petitioner. It is next contended that the petitioner has taken letters from the respondent due to the - 4 - intervention of Mr. Arun Bhargava, Ex-Manager of Oriental Bank of Commerce, who has stated that the petitioner has filed hundis, executed in its favour by the respondent. However, the hundis are not sufficiently stamped, for which reason the same are inadmissible in evidence. In substance it is stated that the claim of the petitioner founded on the hundis cannot proceed in law. Having considered the reply on merits, I am of considered opinion that the defence taken is not bona fide and untenable. In so far as hundis are concerned, I am in agreement with the submission on behalf of the petitioner that present petition is not founded on the said hundis, but is in relation to the dishonoured cheque in the sum of Rs.50 lakhs, drawn in favour of the petitioner by the respondent. 4. Besides, I find no substance in the defence taken by the respondent that at the behest of Mr. Arun Bhargava, Ex-Manager of Oriental Bank of Commerce the respondent executed letters or documents as is the case made out in the reply affidavit. The Contemporaneous documents however would clearly go to show that the transaction entered into by the respondent was a conscious and - 5 - well understood transaction. It is not the case of the respondent that any one pressurized the respondent to enter into said transaction or to sign the documents, much less no financial assistance was availed by the respondent at all. The fact that financial assistance, availed by the respondent, is established from the contemporaneous record. Suffice it to observe that the petitioner has established the position that petitioner had offered financial assistance to the respondent to the extent of Rs.50 lakhs which was availed by the respondent and the respondent executed certain documents in recognition of its obligation to repay the amount along with agreed interest. The said amount remained unpaid. The petitioner issued statutory notice, which was duly served upon the respondent. In spite of statutory notice, the amount remained unpaid. Significantly, when this petition came up for admission, Court passed conditional order, requiring the respondent to repay the outstanding amount, as recorded on 22nd January 1999. But the respondent has not bothered to pay the said amount in terms of the said conditional order as well. Taking overall view of the matter, I have no hesitation in concluding that the respondent has - 6 - failed and neglected to pay the outstanding debt and that is unable to pay the same till date. Accordingly, this petition should succeed. 5. For the aforesaid reasons, Company Petition is made absolute in terms of prayer Clause (a) and (b). Sd/- [ A.M. KHANWILKAR, J.]