BARIN GHOSH, J. ( 1 ) THE Court: On the ground that the company is unable to pay its debts, the petitioning creditor has applied for winding up of the company. In support of its case, the petitioning creditor relies on deemed inability of the company to pay its debts. ( 2 ) THE statutory notice issued in this case, was met by an answer to the effect that the company is forwarding the same to its solicitor with its file of papers to reply the same, which reply did not come into existence. ( 3 ) THE statutory presumption of inability is rebuttable. We will, therefore, have to see whether such presumption has been rebutted in the affidavit filed by the company. In the matter of finding out the same, it is not necessary that we must satisfy to the hilt that the presumption has been squarely rebutted; all that we are required to look at is to fled out whether the company has been able to make out a possible defence to the monetary claim of the petitioning creditor. In doing so, we have only to see whether an issue of fact arises, which cannot be decided without a trial on the assertions made by the petitioning creditor and denied by the company on affidavits. There is no such issue of facts in the instant case. ( 4 ) THE company, however, contends that having regard to the facts and circumstances, non-payment by it was justified. On such plea a mixed question of facts and law arises. The facts to be considered in answering the question, are not disputed, or, are such that no trial is called for to determine the same. Therefore, the only thing that is required to be done in the instant case, is to find out whether on the facts as ascertained the company was justified in law in not paying the dues of the petitioning creditor. The facts ascertained justifying non-payment may be summarised in the manner as indicated below. ( 5 ) THE petitioning creditor was in occupation of premises No. l Oil Installation Road, Paharpur, Calcutta, which belonged and still belongs to the Calcutta Port Trust, as a lessee, which lease expired on 31st December, 1987. Despite expiry of the sold lease, the petitioning creditor continued to be in possession of the said premises. ( 5 ) THE petitioning creditor was in occupation of premises No. l Oil Installation Road, Paharpur, Calcutta, which belonged and still belongs to the Calcutta Port Trust, as a lessee, which lease expired on 31st December, 1987. Despite expiry of the sold lease, the petitioning creditor continued to be in possession of the said premises. While in possession of the said premises, the petitioning creditor on 5th May, 1993 entered into an agreement with the company, whereunder it was agreed that for 36 months, effecting from 15th May, 1993 and ending on 14th May, 1996 the petitioning creditor shall earmark a covered area of 20,000 sq. ft. and an open area of 40,000 sq. ft. at the said premises for the company in order to enable it to store, warehouse and handle its containers and cargoes in consideration of payment of a sum of Rs. 2,50,800 as quarterly advance warehousing and allied charges including charges for security personnel payable by the 13th of the quarter calender month. In terms of the said agreement, possession of the earmarked portion of the said premises was delivered to the company, whereupon the company made over to the petitioning creditor certain cheques. The cheques dated 26th June, 1993; 13th August, 1993; 31st August, 1993 and 6th September, 1993 respectively for Rs. 83,600; Rs. 83,600. Rs. 1,25. 400 and Rs. 83,600 handed over for using the said space for period from 15th May, 1993 to 30th September 1993, were honoured without any difficulty, but the cheque for Rs. 2,50,800 dated 1st October, 1993 made over for occupying the said space from tat October, 1993 to 31st December, 1993 was returned unpaid with the remark "stop payment", whereupon the same was replaced by a fresh cheque dated 11th October, 1993, which was encased on 16th October, 1993. The next cheque dated 1st January, 1994 for Rs. 2,50,800 handed over for occupying the said space from 1st January. 1994 to 31st March, 1994 was honoured on 4th January, 1994. However, the cheques dated 1st April, 1994, 1st July, 1994, 1st October, 1994, 1st January, 1995 and 1st April, 1995 for Rs. 2,50,800 each, aggregating to a sum of Rs. 12,54,000 were returned with the remark "stop payment". Under the agreement the company was required to deposit a sum of Rs. 1,60,000 as interest free security deposit with the petitioning creditor. 2,50,800 each, aggregating to a sum of Rs. 12,54,000 were returned with the remark "stop payment". Under the agreement the company was required to deposit a sum of Rs. 1,60,000 as interest free security deposit with the petitioning creditor. The company made over a cheque dated 3rd September, 1994 for Rs. 1. 60,000 to the petitioning creditor on account of such security deposit. This cheque was also dishonoured by issuing a stop payment instruction by the company. Under the agreement, the company was required to deposit a sum of Rs. 5000 as security deposit for telephone and another sum of Rs. 10. 000 as security deposit for electricity. The company did not make any such deposits. The company is seeking to justify non-honouring of its cheques issued pursuant to the agreement, whereunder it is in the use and occupation of the said space, principally on the ground that prior to the making of the said agreement, the petitioning creditor had represented to the company that it is a lessee of the said premises under the Calcutta Port Trust, which lease is subsisting, and in addition thereto it has necessary permission to sublet or part with possession of the said premises obtained from the Calcutta Port Trust, but the fact that the lease of the company expired much before entering into the said agreement and that the petitioning creditor had and has no permission of the Calcutta Port Trust to sub-let or part with possession of the said premises or any part thereof came to the knowledge of the company subsequently, when it also came to learn that the Calcutta Port Trust Authority has already initiated proceeding under the provisions of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 for eviction of the petitioning creditor from the said premises with a claim for recovery of Rs. 1. 4 crores. The company also came to learn that under the Major Port Trusts Act, 1963, the Calcutta Port Trust has power and authority to seize and retain any goods/machinery which have been placed/installed at the said premises with right to exercise lien over the same and also right to sell the same for realisation of its dues. 1. 4 crores. The company also came to learn that under the Major Port Trusts Act, 1963, the Calcutta Port Trust has power and authority to seize and retain any goods/machinery which have been placed/installed at the said premises with right to exercise lien over the same and also right to sell the same for realisation of its dues. The company, therefore, contends that the said agreement was entered into by the petitioning creditor by mis-representing the true and correct facts relating to its lease or its right to sub-lease or part with possession of the said premises, which vitiated the agreement. The agreement, to fact, does not contain any representation on the part of the petitioning creditor. ( 6 ) IT also does not record that the agreement was entered by the company by relying on any representation of the petitioning creditor. The agreement in question is a written document. The company contends that in any event the petitioning creditor had a duty to speak when it kept silence and therefore, the contract is vitiated by fraud. Assuming the company was induced to enter into the contract in question either by misrepresentation or by fraud it could avoid the same or alternatively it could insist that the contract shall be performed and that it shall be put in the position in which it would have been if the representations made had been true. The contract has not been avoided. The company continued to remain in possession of the space in question for the full term of 36 months, which ended on 14th May, 1996, during such period the Calcutta Port Trust Authority neither south to exercise lien over any goods or machinary of the company, nor sought to sell the same. After occupying the space in question for the full term without any hindrance, and even without a physical threat, the company cannot in law either seek to avoid the contract, nor can seek procurement of permission of the Calcutta Port Trust by the petitioning creditor to permit the petitioning creditor to part with possession of, or under-let the space to question to the company. If the company came to learn about the fraud and the misrepresentation subsequent to entering into the contract it could then and there avoid the contract by delivering back the possession to the petitioning creditor. If the company came to learn about the fraud and the misrepresentation subsequent to entering into the contract it could then and there avoid the contract by delivering back the possession to the petitioning creditor. It could, as aforesaid, also insist the performance, but while doing so it could not deny performance of its obligations. The company could assume that having regard to the claim of Calcutta Port Trust as against the petitioning creditor, the amount payable by the company to the petitioning creditor is payable to the Calcutta Port Trust as mentioned by it in its letter dated 4th April, 1994, addressed to the petitioning creditor to the effect, "unless the claim of Calcutta Port Trust are settled by you it will be difficult to obtain permission/no-objection from Calcutta Port Trust and agreed monthly amount can be paid directly by us to Calcutta Port Trust towards the clearance of your dues. " In such circumstances. if the company had paid or tendered to the Calcutta Port Trust the amount payable by it to the petitioning creditor, even if such assumption was wrong, it could not be said that such payment could not dislodge the statutory presumption, but in fact, no such payment was made or tendered. ( 7 ) OF course, as held in D. Satyamarayana v. P. Jagadish, reported in AIR 1987 SC 2192 , the company, if it was claiming as a tenant, could attorn its tenancy in favour of the original lessor, the Calcutta Port Trust, and if it was claiming as a licensee, could convert its licence directly under the owner, the Calcutta Port Trust, on threat of eviction by the Calcutta Port Trust, being the person claiming title paramount and could pay to the Calcutta Port Trust the amount of rent or licensee or whatever is payable by the company under the agreement in question, and in such event, a very strong defence would have arisen to the right of the petitioning creditor to claim the amounts under the agreement, but there was, in fact, no threat of eviction by the Calcutta Port Trust, nor there was any attempt on the part of the company either to attorn its tenancy in favour of the Calcutta Port Trust or to treat the Calcutta Port Trust as its licensor and at the same time. the company neither offered to pay, nor tendered any sum on account of rent or licensee to the Calcutta Port frost. On the other hand, as relied by the company, it wrote to the Chairman, Calcutta Port Trust, a letter dated 6th July, 1995, stating as follows:"as we have already had the privilege of bringing to your kind notice, a portion of the premises at No. l, Oil Installation Road, Paharpur, Calcutta, originally leased out to M/s. Victor Oil Co. Pvt. Ltd. , is being used by us since 7. 5. 93 for storage/stuffing/destuffing of containers with the sole object of reducing congestion and bringing down the cost of container handling at Calcutta Port with the ultimate idea of attracting more traffic to this Port. In the above context, you may kindly recall the discussions the undersigned had with you, when It was suggested that if we could pay direct to the CPT, an arrangement could be made to allow us proper usage of the aforesaid premises with a "no objection" certificate from the CPT. As you may kindly appreciate that unless a "no objection" certificate is received from your end, we will not be able to use the aforesaid premises as a Container Freight Station in its true sense, as a result of which we have been losing substantial amount of business and colossal money. On the other hand, we have invested lakhs of Rupees for developing the aforesaid premises for the Container Freight Station operations. In view of the above, we would like to appeal before you that we would have no hesitation to pay the outstanding dues direct to the CPT, if the outstanding amount be calculated proportionately, commensurate with the area we are occupying, and we be permitted to pay off our share of the outstanding dues over a staggered period. " ( 8 ) THE company then wrote another letter dated 4th February, 1995 to the Chairman, Calcutta Port Trust, as relied by the company, stating as follows:-"as you are kindly aware of, a portion of the premises at 1, Oil Installation Road, Paharpur, Calcutta, originally leased out to M/s. Victor Oil Co. " ( 8 ) THE company then wrote another letter dated 4th February, 1995 to the Chairman, Calcutta Port Trust, as relied by the company, stating as follows:-"as you are kindly aware of, a portion of the premises at 1, Oil Installation Road, Paharpur, Calcutta, originally leased out to M/s. Victor Oil Co. Pvt. Ltd. , is being presently used by us for storage and stuffing/destuffing of containers with the sole object of reducing congestion inside the Docks and bringing down the costs of container handling at Calcutta Port with the ultimate idea of attracting more traffic to this Port. In the above premises we have been using open storage space measuring about 60,000 sq. ft. and a covered shed measuring about 20,000 sq. ft. for the aforesaid purposes on a monthly remuneration system. We have been using the said premises from 7th May, 1993. In the above context, kindly refer to the discussion the undersigned had with you, whereupon it was suggested that If we could pay the said amount direct to file Calcutta Port Trust, an arrangement could be made to allow us proper usage of the aforesaid premises with a "no objection" Certificate from CPT. You may kingly appreciate that unless a "no objection" certificate is received from the Calcutta Port Trust, we will not be able to use the aforesaid premises as a Container Freight Station in its true sense, as a sequel to which we have been losing substantial amounts of business and colossal amount of money. On the other hand, we have invested several, lakhs of rupees for developing the aforesaid premises to suit Container Freight Station operations. In view of the foregoing, if the above proposal relating to the payment of the monthly rental be accepted, we would have no hesitation to pay the aforesaid amount direct to the Calcutta Port Trust, so that we could end this stalemate and could get a "no objection" certificate from you. " ( 9 ) LASTLY, on 30th August, 1995 the company wrote another letter to the Chairman, Calcutta Port Trust, as relied by the company, where surprisingly it was stated that as if the Chairman, Calcutta Port Trust, advised a representative of the company that unless the petitioning creditor obtained permission or no objection from the Calcutta Port Trust, the company should refrain from making any payment of rent to the petitioning creditor. ( 10 ) IT therefore, appears to me that the company is now seeking to raise a bogie of threat of eviction to shield its bankruptcy. ( 11 ) THERE is no explanation as to why the cheque for the security deposit was dishonoured by it in 1993, when according to the company, it was unaware that the lease in favour of the petitioning creditor expired prior to the making of the agreement in question and that without obtaining necessary permission of the Calcutta Port Trust, the petitioner entered into the agreement. ( 12 ) IT is even more surprising that in its first reaction towards the demands of the petitioning creditor, the company by a letter dated 20th April, 1994 sought to refuse to pay the dues of the petitioning creditor or sought to justify non-payment on the ground that the same is pending adjudication before this court in a application said to have been made by Pawan Modi and Mr. Pravin Kumar Modi. The company took the said stand also in the affidavit-in-opposition filed to the present application. It. however, utterly failed to substantiate the same or even a remote possibility of such adjudication. ( 13 ) THE company has, therefore, utterly failed to rebut the statutory presumption since it has failed even to show a remote possibility to defend the claim of the petitioning creditor. ( 14 ) THE petition is, therefore, admitted for a sum of Rs. 16,79,800 and interest thereon at the rate of 24% p. a. from 13th July, 1995. Let the petition be advertised once in the Statesman and once in the Ananda Bazar Patrika and let the petition be made returnable eight weeks after such publication. The advertisements as directed should not be published for a period of four weeks from the date hereof. In the event the company pays the sum of Rs. 16. 79. 800 together interest thereon at the rate of 24% p. a. from 13th July, 1995 until the date hereof to the petitioning creditor, within four weeks from the date hereof no such advertisement shall be published, in default such advertisement shall be published within three weeks of expiry of four weeks from the date hereof. Advertisement in the Calcutta Gazette is dispensed with. The petitioning creditor will be entitled to costs of this application assessed at Rs. 10. 000/ -. Advertisement in the Calcutta Gazette is dispensed with. The petitioning creditor will be entitled to costs of this application assessed at Rs. 10. 000/ -. Let all parties act on a signed xerox copy of this dictated order on the usual undertaking. Stay as prayed for is refused. Order accordingly.