-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.791 OF 2007 In the matter of M/s.Prabodh Ertha Sanchay Pvt. Ltd. M/s.Synthesis Equity Research Foundation Pvt. Ltd. : Petitioner ... Mr.D.J.Khambatta, Senior Advocate, with Mr.R.D.Soni i/b. M/s.Ram & Co., for the petitioner. Mr.N.Seervai, Senior Advocate, with Mr.Birendra Saraf, Mr.S.M.Merchant and Chaitra Rao i/b. M & M Legal Ventures for the respondent. ... CORAM : S.A. BOBDE, J. DATE : SEPTEMBER 11, 2008. P.C. 1. This is a petition for winding up of the respondent-company. According to the petitioner, it admittedly gave loans in the sum of Rs.4.25 crores, presumably for business purposes. However, admittedly, there is no document or correspondence which shows the purpose for which the loan was advanced. This amount has been received by the respondent-company. Admittedly, the -: 2 :- amount has not been re-paid. The petitioner’s case in short is that the reason for not repaying the amount given by the respondent-company is sham and not bona fide and, therefore, the Company Petition for winding up deserves to be admitted. In these circumstance, it is necessary to examine the defence of the respondent. 2. In the reply dated 18.5.2007 to the statutory notice dated 25.4.2007, the respondent alleged that the petitioner engaged them as a consolidator and facilitator for purchasing lands in and around Pune. According to the respondent, such transaction requires payment of certain amount by cash and, therefore, one of the Directors of the petitioner-company advanced an amount of Rs.4.25 crores in eleven different instalments from 14.1.2006 to 2.2.2007. The Director of the respondent company Mohan Chimanlal Gujarathi entered into an agreement with one Vithal Tukaram Bharekar, who agreed to sell the land for the price of Rs.7.10 lakhs per acre. The respondent has given details of how the land vests partly in the petitioner and partly in the respondent-company. The specific case made out by the respondent is that there were simultaneously private transactions between the Director of the petitioner-company by name Napate and his wife. It is also not disputed that certain lands have been transferred to said Napate and his wife. To come back to the -: 3 :- transaction in question, the respondent-company has pleaded that the actual consideration paid to the land owners was Rs.7.10 lakhs per acre, though the consideration for the aforesaid document was Rs.5 lakhs per acre and the difference in the said rates amounting to Rs.64.30 lakhs was paid through the company out of funds provided by the petitioner. 3. Mr.Khambatta, the learned counsel for the petitioner, submitted that there is no documentary evidence in support of the respondent’s case. In fact, the respondent alleged in the reply to the notice that certain letters were written to the petitioner which have been withheld and have not been filed. Moreover, according to the learned counsel, there is a substantial variation between the reply filed by the respondent in the Court and in the affidavit-in-reply and the reply to the statutory notice. In the affidavit-in-reply, the respondent has stated that the amounts were utilised as follows:- "D 3.65 lakhs Advances towards payments of other lands at Mokarwadi (Visar Pavati Payments). E. 28.00 lakhs Further payments towards lands at Mokarwadi. F. 88.80 lakhs Amount retained by Prabodh as land Consolidator and Facili- tator as per the agreement." -: 4 :- Mr.Khambatta submits that having regard to the admitted transactions of land in the names of Napates, it is possible that the amount of Rs.155 lakhs at item ‘A’ was, in fact, remitted back to Napates. Mr.Khambatta submits that there is no documentary evidence which establishes any of the re-payment alleged by the respondent in their reply. Mr.Seervai, the learned counsel for the respondent, however, submitted that there is voluminous evidence, direct and indirect, which shows re-payment. It is not possible to go into the details of such evidence in these proceedings. From the above statements, payments under two items appear to be probable. Having regard to private transactions between the Directors of the petitioner-company and the Director of the respondent-company which are not disputed and having regard to the fact that certain lands have been transferred to the Directors of the petitioner-company, it is possible that this amount was advanced to cover those transactions in some way. It is equally possible, therefore, that certain amount was returned to the Directors of the petitioner-company. 4. As regards item no.‘B’, Mr.Khambatta submitted that there is no evidence whatsoever of any amount having been paid by the vendor Vithal Bharekar to Wanjale and, in any case, Wanjale is not mentioned in the notice as a person -: 5 :- to whom Bharekar directed payment to be made. Mr.Seervai points out from the reply to the notice that they have alleged that payments to Bharekar "and others" against consideration of land vide paragraph 6 of the reply. Similarly, it appears that the amount at item no.(a) may have been returned by the respondent-company as land consolidator and facilitator. It is possible that the petitioner appointed the respondent as consolidator and facilitator i.e. a broker since the dealing between the Directors of the company were in respect of land. There is admittedly no documentary evidence in existence to show the actual relationship of the petitioner and the respondent or the Directors. There appears to be only exchange of moneys. Having regard to the absence of any agreement to show the nature of relationship between the parties, admitted transaction of land between the Directors of the petitioner company and the Director of the respondent-company, the respondent’s case is plausible and appears to be bona fide. There is no reason why an amount of Rs.4.25 crores advanced by the petitioner-company to the respondent-company without any reason, but for the transactions of land between their Directors. Having regard to the price of land, it is possible that the amount was utilised as stated by the respondent. -: 6 :- 5. At this juncture, it is important to note that for the period of this transaction, several proceedings are pending between the parties, civil and criminal, as enumerated in paragraph 7 of the reply of the respondent. In addition, Mr.Khambatta, in fairness, points out that another Summary Suit, bearing No.169 of 2008, has been filed by the petitioner-company against the respondent-company and is pending in this Court. Mr.Seervai points out that, in fact, in that suit, the plaintiff has alleged the existence of a joint venture agreement between the Directors of the petitioner-company and the Director of the respondent-company to jointly develop and exploit the land in question. Thus, there appears to be bona fide dispute between the parties in regard to the transactions and the amounts advanced thereunder. 6. In the circumstances, the company Petition fails and is dismissed. S.A. BOBDE, J.