Sanjib Banerjee, J.@mdashThis creditor''s winding-up petition was permanently stayed by an order of December 5, 2011 on the ground that an essential condition for receiving the payment from the company appeared not to have been complied with by the petitioning creditor. The petitioner thereafter sought a review of the order by which the petition was declined to be admitted, but the review failed on the ground that the petitioner had not demonstrated that despite exercise of best diligence the petitioner could not produce the relevant documents at the time that the order dated December 5, 2011 was passed. Appeals were carried from both the order declining to admit the winding-up petition and the one dismissing the review application. The Appellate Court agreed with the views expressed in both the orders, but afforded the petitioning creditor an opportunity to present its best documents for a reconsideration of the claim. Hence the present hearing. The petitioning creditor has used a supplementary affidavit disclosing certain additional documents. The veracity of the additional documents appended to the petitioner''s supplementary affidavit has not been questioned by the company.
2. The claim of the petitioning creditor is on account of money due under an agreement. According to the petitioner, a piece of land belonging to the directors of the petitioner company was conveyed to the company under an agreement. The petitioner claims that a sum of about Rs. 1.45 lakh payable in terms of a memorandum of understanding dated September 21, 2010 remains due. The petitioner says that it has duly discharged all its obligations in terms of the memorandum of understanding and the land has also been conveyed by the directors of the petitioner in favour of the company. That the land has been conveyed to the company is also not in dispute.
3. The order dated December 5, 2011 recorded a solitary objection raised on behalf of the company. The company had submitted then that the first clause of the memorandum of understanding obliged the petitioner to furnish a no-dues certificate from the West Bengal State Electricity Distribution Company Limited for the petitioner to be entitled to the sum of Rs. 1.45 lakh. Indeed, the relevant clause provides for the no-dues certificate to be furnished for the petitioner to be entitled to the sum of Rs. 1.45 lakh.
4. The petitioner says that the sum of Rs. 1.45 lakh due under the memorandum was paid on behalf of the company by a sister concern by way of a cheque but the cheque was dishonoured upon presentation. The petitioner suggests that since the sister concern had only tendered the payment on behalf of the company concerned, the petitioner''s claim against the company remains. When the petition was taken up for hearing on December 5, 2011, the petitioner could not demonstrate that any no-dues certificate had been issued by the electricity company. Though the petitioner sought to rely on some document, the Court did not permit any new document to be sprung on the company at the hearing. The petition was not admitted because the petitioner could not conclusively demonstrate-though it was required to do so in a matter of this kind and where the claim is assessed on affidavit evidence-that it was entitled to the payment that it claimed. The review petition was dismissed since it appeared that the relevant document was in the possession of the petitioner but it had been carelessly-not despite due diligence-not appended to the papers filed by the petitioner in Court.
5. Since the Appellate Court has condoned the petitioner''s conduct and has now required the matter to be dealt with afresh on the basis of the documents relied upon by the petitioner, the claim has to be reassessed with reference to the new documents introduced by the petitioner.
6. In the supplementary affidavit affirmed on behalf of the petitioner on August 2, 2012, the petitioner has referred to a letter issued by the West Bengal State Electricity Distribution Company Limited on or about July 30, 2010 requiring the petitioner to pay a sum of Rs. 13,55,967.17 as "one time full and final settlement of O.S.D. without imposition of any further LPSC as an out of court settlement... subject to withdrawal of the court cases by you." The petitioner has also referred to a covering letter dated September 20, 2010 under which the petitioner forwarded a banker''s cheque of Rs. 13,55,967.17 to the electricity company. A copy of the relevant instrument has also been appended to the petitioner''s latest affidavit along with a money receipt issued by the electricity company. In addition, the petitioner has relied on an order dated October 6, 2010 passed on WP No. 14863(W) of 2003 which had been instituted by the petitioner against the electricity company. The order recorded that the disputes between the parties had been settled out of Court.
7. The company insists that since the relevant clause in the memorandum of understanding refers to a no-dues certificate being furnished, the money receipt or the other documents relied upon by the petitioner would not suffice and unless the no-dues certificate is shown, the petitioner is not entitled to payment of the balance sum of Rs. 1.45 lakh. The company has again, as on December 5, 2011, altogether denied the transaction pertaining to its sister concern and vehemently maintains that the cheque for Rs. 1.45 lakh issued by the sister concern was not in respect of the memorandum of understanding which is the subject-matter of the present proceedings.
8. The company also refers to another clause in the memorandum which requires the petitioner to cooperate with the company in the matter relating to the provident fund dues of the employees. The company says that though the petitioner was obliged to sign forms and other documents in such regard, the petitioner has not done so. The company refers to the vague second-last paragraph of its letter dated January 27, 2011 issued in response to the statutory notice to assert that the petitioner had not discharged its obligations under the memorandum of understanding.
9. Since it is the company''s stand that the cheque for Rs. 1.45 lakh issued by the company''s sister concern to the petitioner did not involve this transaction, such version has to be accepted. That would imply that the company would be obliged to pay the sum of Rs. 1.45 lakh to the petitioner if the petitioner had complied with its obligation to the company entitling the petitioner to receive such payment. It is true that no formal "no-dues certificate" has been issued by the electricity company, but it cannot be lost sight of that the relevant clause was in the nature of an indemnity in the sense that the petitioner would be obliged to discharge the electricity dues. The petitioner has adequately demonstrated, on the basis of the documents appended to its latest affidavit, that the electricity dues have been cleared and the adamant and unjustified stand still taken by the company would demonstrate its inability to pay its debt and would eminently qualify the company to be wound up. There is no defence that the company can show to resist payment of the sum of Rs. 1.45 lakh that was due in terms of the relevant clause of the memorandum of understanding, particularly in the light of the electricity company''s letter demanding payment of a particular sum in full and final satisfaction of its claim and the company''s acceptance of the veracity of the relevant money receipt.
10. As to the company''s reference to the alleged failure of the petitioner to discharge its obligations on account of the provident fund dues of the employees, the relevant clause does not empower the company to withhold any payment on account of the petitioner''s failure to cooperate with the company in such regard. The company can demonstrate no more than the vague paragraph in its letter of January 27, 2011 in support of its allegation that the petitioner is in default on such count. The company is left free to establish the petitioner''s default and take appropriate action before the proper forum.
11. The company is liable to the petitioner in the sum of about Rs. 1.45 lakh which the petitioner was entitled to receive immediately upon the petitioner clearing the electricity dues. The company has not made payment of the said sum without just cause and, accordingly, CP No. 79 of 2011 is admitted for the principal sum of Rs. 1,44,033/- together with interest thereon at the rate of 10% per annum from September 24, 2010 (the money receipt issued by the electricity company is dated September 23, 2010) till payment. If the company pays the entire amount, inclusive of interest and costs assessed at 2000 GM within a fortnight from date, the petition will remain permanently stayed. In default, the petition will be advertised once in The Statesman and once in Bartaman. The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with.
