JUDGMENT : Ashis Kumar Chakraborty, J. 1. The petitioner in this application has prayed for winding up of the company under Sections 433(e), 434 and 439 of the Companies Act, 1956 (in short “the Act of 1956”). 2. It is the case of the petitioner that in terms of an agreement dated May 23, 2014 entered into between the parties, it advanced a loan of Rs.10 lakhs to the company, which was repayable on or before November 30, 2014 with interest at the rate 21%, per annum, compounded quarterly. A copy of the said agreement dated May 23, 2014 has been disclosed as Annexure-“C” to the petition. The said sum of Rs. 10 lakhs was paid by the petitioner to the company by RTGS, through its bank account maintained with the IDBI Bank, Brabourne Road Branch, The petitioner has disclosed a copy of the relevant portion of its bank statement showing payment of Rs. 10 lakhs to the company through RTGS. Since the company did not repay the said sum of Rs. 10 lakhs as per the agreed terms, within November 30, 2014 by a letter dated December 04, 2014 the petitioner called upon the company to pay its dues under the said agreement. By a letter dated December 18, 2014 the petitioner acknowledged the receipt of the payment of Rs.10 lakhs under the said agreement dated May 23, 2014 and stated that it is trying its level best to repay the said amount, along with interest at the earliest. However, the company did not make any payment to the petitioner. By a notice dated May 05, 2015 issued under Section 434 of the Act of 1956 (hereinafter referred to as “the Act of 1956”) the petitioner called upon the company to pay the principal amount of Rs. 10 lakhs, together with the agreed rate interest amounting to Rs. 12,12,815/-. By a letter dated May 26, 2015 the company, through its advocate, replied to the said notice dated May 05, 2015 disputing its liability to pay any money to the petitioner. 10 lakhs, together with the agreed rate interest amounting to Rs. 12,12,815/-. By a letter dated May 26, 2015 the company, through its advocate, replied to the said notice dated May 05, 2015 disputing its liability to pay any money to the petitioner. In the said letter the company alleged that in the month of April, 2015 there was a change in its management and Sri Sanjay Kanoi and his relatives and associates, (hereinafter described as the “Kanoi Group”) transferred their entire shareholding to Sailesh T. Desai and his relatives and associates (hereinafter described as “Desai Group”) on the terms and conditions stated in the share purchase agreement. It was further alleged that under the said share purchase agreement, the Desai Group has not assumed the liability to pay off the alleged claim of the petitioner and the Kanoi Group was obliged to pay, satisfy and discharge the alleged claim of the petitioner. The company also alleged the petitioner to be a friendly creditor of the Kanoi Group, who in collusion and connivance with the petitioner have forged and fabricated the loan agreement and other letters and documents referred to in the said letter dated May 05, 2015 which are not available in its records. The company called upon the petitioner to furnish copies of the said loan agreement and other documents referred to in its said notice dated May 05, 2015. By a letter dated June 03, 2015 addressed to the company’s advocate, the petitioner denied and disputed all the allegations made in the said letter of the company dated May 26, 2015. Thereafter, the petitioner filed the present application for winding up of the company. 3. The company contested the winding up application and filed its affidavit-in-opposition alleging that it was originally controlled by the Kanoi Group, where Sanjay Kanoi was a director and principal share holder. In terms of the share purchase agreement dated February 10, 2015 the Kanoi Group transferred their entire share holding to the Desai Group controlled by Sailesh T. Desai. As per the said share purchase agreement, December 14, 2014 was fixed as the cut off date and any liability of the company before such cut off date would belong to the Kanoi Group, who would keep the Desai Group indemnified from any liability arising over and above the assumed liabilities which extended to Rs. 70 crores. As per the said share purchase agreement, December 14, 2014 was fixed as the cut off date and any liability of the company before such cut off date would belong to the Kanoi Group, who would keep the Desai Group indemnified from any liability arising over and above the assumed liabilities which extended to Rs. 70 crores. The company further alleged that before entering into the said share purchase agreement, the Kanoi Group did not inform the Desai Group of the loan agreement dated May 23, 2014 or receipt of any loan by the company from the petitioner. Further, no Board Resolution of the company is available in its records towards obtaining the said loan of Rs. 10 lakhs from the petitioner and said Loan Agreement dated May 23, 2014 has been brought into existence by the Kanoi Group by acting hand in glove with the petitioner to suit their personal benefits and the said agreement is a forged and fabricated document. It was alleged that the amount shown to have been transferred in the account of the company by the petitioner through RTGS is a fictitious liability created by the Kanoi Group and the petitioner in connivance with each other. According to the company, even if the said amount of Rs. 10 lakhs was in fact paid by the petitioner, the same was the liability of the Kanoi Group as there was no approval of the Board of the company authorising Sanjay Kanoi to take such alleged loan on behalf of the company from the petitioner. It was also alleged that while negotiations for purchase of the Seller Group’s shareholding was in progress, the said group had handed over to the purchasers in or around December, 2014 a document for a period between April, 2014 – 1st December, 2014 which identified amounts in relation to the petitioner under the category of “Advance Against Tea”. The company further alleged that since the petitioner does not hold a money lenders’ licence under the Bengal Money Lenders’ Act, 1940(hereinafter referred to as “the Act of 1940”). In terms of Section 13 of the said Act, the present application should be stayed until the petitioner obtains the said licence. 4. In its affidavit-in-reply the petitioner denied the allegations made in the affidavit in opposition of the company. 5. Mr. In terms of Section 13 of the said Act, the present application should be stayed until the petitioner obtains the said licence. 4. In its affidavit-in-reply the petitioner denied the allegations made in the affidavit in opposition of the company. 5. Mr. Deb, learned senior advocate appearing in support of the application submitted that in this case the payment of Rs. 10 lakhs by the petitioner to the company by way RTGS transfer is not only acknowledged in the receipt issued by the company, as enclosed to the said agreement dated May 23, 2014 but also in its letter dated December 11, 2014. He submitted that in law the company is a distinct juristic entity and the creditor of a company is not concerned with the change of management of the company. It was further contended that even it be accepted for the sake of argument, that there is no board resolution of the company for obtaining the said loan of Rs. 10 lakhs from the petitioner ought to enter into the said agreement dated May 23, 2014 the absence of such board resolution has no bearing on the petitioner’s claim in this application. It was argued that in the instant case when the company itself alleged that its erstwhile management handed over a document for the period between April 2014 to 1st December, 2014 identifying the amounts in relation to the petitioner under the category of an “Advanced Against Tea” and the company withheld such document from this Court, an inference may be drawn that the said agreement dated May 23, 2014 all along formed and still forms part of the records of the company. It was further submitted that although the company has sought to put up a defence to the petitioner’s claim in this application by alleging that the said agreement dated May 23, 2014 is fraudulent and collusive but, it has not filed any legal proceeding, before the competent Court of law, for cancellation of the said agreement. The petitioner stressed that as per Section 13 of the Act of 1940 it is only when the plaintiff in a suit for recovery of money lent and advanced does not hold a money lender’s licence, his suit is liable to be stayed and the said provision does not apply to the present winding up application of the petitioner. The petitioner stressed that as per Section 13 of the Act of 1940 it is only when the plaintiff in a suit for recovery of money lent and advanced does not hold a money lender’s licence, his suit is liable to be stayed and the said provision does not apply to the present winding up application of the petitioner. Urging all these contentions, the learned counsel appearing for the petitioner urged that the allegations made by the company in its affidavit-in-opposition do not constitute any bona fide defence to the petitioner’s claim in this application and, as such, the present winding up application against the company should be admitted. 6. However, Mr. Chayan Gupta, led by Mr. Jaydip Kar, learned advocate appearing for the company submitted that the allegations made by the company in its affidavit-in-opposition disclose that the company has a bona fide defence to the claim of the petitioner in this application. It was submitted that the petitioner could not dispute the change of management of the company in terms of the said share purchase agreement dated February 10, 2015 between the said Kanoi Group represented by Mr. Sanjay Kanoi with the Desai Group. According to Mr. Gupta,, in the absence of any board resolution of the company authorising the said Sanjay Kanoi to obtain the said loan of Rs. 10 lakhs from the petitioner, the present management of the company cannot be made liable to repay the said sum, together with interest thereon to the petitioner as claimed in this application. It was submitted that in order to establish its claim for obtaining refund of the said sum of Rs. 10 lakhs from the company, the petitioner is required to file an appropriate suit against the company before the appropriate court of law and during the examination of the petitioner’s witness the company would prove the said agreement dated May 23, 2014 to be collusive and fraudulent and not binding upon it. It was, however, admitted by the company that till today, it has not filed any suit or legal proceedings before any competent Court of law for cancellation of the said agreement dated May 23, 2014. It was lastly contended by the company that when the petitioner does not hold a money lender’s licence under the Bengal Money Lenders’ Act, 1940 as per Section 13 of the said Act, the present application is not maintainable. It was lastly contended by the company that when the petitioner does not hold a money lender’s licence under the Bengal Money Lenders’ Act, 1940 as per Section 13 of the said Act, the present application is not maintainable. Urging all these grounds, Mr. Gupta submitted that the company has raised a bona fide dispute to the claim of the petitioner in this application and the defence put up by the company involved tribal issues. Therefore, it was urged by the company that the present winding up application should be dismissed. 7. I have considered the materials on record and the arguments advanced by the learned counsel appearing for the respective parties. In the instant case, the company had received the payment of Rs. 10 lakhs from the petitioner through its bank account by RTGS and the receipt of the said amount of money by the company is not in dispute. In the facts of this case, even the defence sought to be put up by the company that the erstwhile management of the company had received the said sum of Rs. 10 lakhs from the petitioner to create a fictitious liability of the company does not appear to be of any substance. It is the company’s own case if it is required to pay off any dues of a creditor which was not disclosed by the previous management to the present management, the latter is to be indemnified by the former. According to the present management of the company, there is no board resolution of the company uthorising Mr. Sanjay Kanoi the then director of the company either to receive the said amount of Rs. 10 lakhs from the petitioner or to agree to repay the said amount with interest at the rate of 21%, per annum compounded quarterly. In this regard, I find that when a company obtained the loan from the petitioner through its bank account, there is a presumption in favour of the petitioner that the company had passed the necessary resolution authorising its directors to enter into the said agreement dated May 23, 2014 and to receive the said loan amount. In this regard, I find that when a company obtained the loan from the petitioner through its bank account, there is a presumption in favour of the petitioner that the company had passed the necessary resolution authorising its directors to enter into the said agreement dated May 23, 2014 and to receive the said loan amount. Although, the company has claimed that the said agreement dated May 23, 2014 entered into between the petitioner and itself is fraudulent and not binding upon it but, the company has not filed any legal proceeding before any competent court of law to have the said agreement cancelled. The company further alleged that the said “Kanoi Group” made over certain documents to the present management, “Desai Group” identifying certain amounts in relation to the petitioner under the category of “Advanced Against Tea”. The company has, however, withheld such documents from this Court. Further, from a bare reading of Section 13 of the Actof 1940 it appears that it is when a plaintiff files a suit to recover its dues from the refund defendant on account of money lent and advanced, without holding the appropriate licence and the said Act, the said suit is only liable to be stayed until the plaintiffs obtains the money lender’s licence. The said Section 13 of the Act of the 1940 does not apply to an application filed under the Act of 1956 claiming winding up of a company. 8. The Supreme Court, in the case of Madhusudan Gordhandas and Co.-vs.-Madhu Wollen Industries Pvt. Ltd. reported in AIR 1971 SC 2600 , held that the Court can refuse a petition for winding up of the company when the claim of the petitioner is bona fide disputed by the company. In other words, in the first place when the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly, the company adduces prima facie proof of the facts on which the defence depends, the Court should refuse to admit the winding up application against the company. 9. Considering the facts of the present case as discussed above, I find that the company has not been able to make out any bona fide defence to the claim of the petitioner, nor has it adduced any prima facie proof of the facts on which its defences depend. 9. Considering the facts of the present case as discussed above, I find that the company has not been able to make out any bona fide defence to the claim of the petitioner, nor has it adduced any prima facie proof of the facts on which its defences depend. 10. For all the foregoing reasons, this winding up application is admitted for Rs. 12,12,815/-. However, since the rate of interest claimed by the petitioner at the rate of 21%, per annum appears to be exorbitantly high and, as such, the same is reduced to 9%, per annum. Hence, I hold that petitioning creditor is entitled to the sum of Rs. 12,12,815/-, together with interest at the rate of 9%, per annum. 11. The winding up application shall be advertised once in the English newspaper, “the Statesman” and once in the Bengali newspaper, “Bartaman” by May 22, 2018. Publication in the Official Gazette is dispensed with. Let, this application appear in the list on June 14, 2018. 12. Urgent certified copy of this judgment, if applied for, be made available to parties subject to compliance with all the requisite formalities.