K. Haripal JUDGMENT
K. Haripal, J.
1. These are appeals preferred under Section 483 of the Companies Act, 1956, hereinafter referred to as 'the Act', read with Section 5 of the High Court Act, challenging the correctness of the judgment passed by the learned Single Judge in Company Petition Nos. 2/2012, 40/2011 and 55/2011 respectively. Appellant is the respondent in all the petitions. As common questions are involved and since the company petitions were disposed of together by the impugned judgment, these matters were heard together and are being disposed of by this common judgment.
2. Respondents in these appeals moved this Court under Section 433(e) read with Sections 434(a) and 439(b) of the Act, seeking to wind up the appellant company. They claim that they are creditors of the company, that huge amounts are due to them from the company, inspite of repeated demands the amounts were not repaid, and thus it became clear that the company is unable to repay the debts due to the creditors and thus they wanted the company to be wound up.
3. Petitioners in C.P. No. 2/2012 claimed that they together were entitled to get Rs. 15 lakhs, with agreed rate of interest from the company. According to them, they had made investments in the monthly investment scheme floated by the company, details of which have been stated in the petition, even though the amounts were matured, the company was not in a position to repay the same with interest and that made them to send a notice as provided under Section 434(1) of the Act. But the notice returned with the endorsement that the office of the company stood locked. That means, it is certain that the company has defrauded them and other similarly placed persons, it has become commercially insolvent and thus the substratism of the company has been eroded, that it is unable to pay off its debts due to the creditors. They have also annexed copy of receipts proving investment of various amounts as claimed by the petitioners and also copy of the lawyer notice, postal receipt and copy of the envelope addressed to the appellant showing that it was returned to the lawyer with the endorsement that the office of the company remained locked.
4. The appellant filed a counter affidavit in the petition stating among other things that only seven creditors have joined the petition. According to him, the amount alleged to be due to them is not correct, details shown in the deposit receipts, Annexures A to M are not supported by documents, that the claim is frivolous and not based on any substance, that he did not receive any notice as Annexure N that the petition is bad for the mandatory requirement under Section 434(1)(e) (sic) of the Act. It was also stated that the company has sufficient asset such as immovable properties situated in prime locations and it is making earnest efforts to dispose of the property and raise funds, in the meantime, if winding up is ordered, that would adversely affect the interest of creditors. According to him, the petitioners did not make out a prima facie case. In the penultimate paragraph, he prayed for dismissing the company petition and in the alternative, to provide sufficient time to the company for at least one year for raising funds for clearing the liabilities, till such time winding up may not be ordered. The counter affidavit was filed on 01.01.2013.
5. The Company Petition No. 40/2011 was filed by two creditors. According to them, they have invested Rs. 2.4 lakhs each in the term deposit scheme floated by the company which was repayable after 36 months with 12% interest. Through Annexure C notice though they had demanded back the amount, the notice returned with the........