Rajiv Sahai Endlaw, J.;—

1. This appeal under Section 483 of the Companies Act, 1956 challenges the order dated 19.09.2012 of the learned Company Judge of this Court admitting Company Petition No.321/2010 filed by the respondent under Sections 433(e), 434 and 439 of the Act read with Companies (Court) Rules, 1959 for winding up of the appellant, though deferring the publication of the citation for four weeks to give a chance to the appellant to pay the sum of Rs. 2,26,05,872/- in which the appellant has been found to be indebted to the respondent along with interest at 9% per annum, to the respondent. We have heard the counsel for the appellant for a considerable length at the admission stage itself. The respondent being on caveat, appears though counsel.

2. The appellant Company had let out Flat No.101, Nisarg Building 1340-41, Pali Hill, Bandra (West), Mumbai belonging to it to the respondent and had written a letter dated 10.10.2005 to the respondent containing the terms and conditions on which the flat was so offered to the respondent. It was inter alia mentioned in the said letter that the flat was to be for use as a Guest House of the respondent on a rent of Rs. 1,50,000/- per month for a period of three years with effect from 01.12.2005 and the respondent would pay security deposit of Rs. 2,00,00,000/- and Extra Deposit equal to rent of 36 months i.e. Rs. 54,00,000/- refundable by the appellant to the respondent at the rate of Rs. 1,50,000/- per month. It was also mentioned in the said letter that ‘the arrangement’ could be terminated by giving advance notice of 12 months from either side.

3. It is not in dispute that in terms of the aforesaid letter dated 10.10.2005, the flat was let out by the appellant to the respondent with effect from 01.12.2005 and on the terms and conditions contained therein and that the appellant received security deposit of Rs. 2,00,00,000/- and extra deposit of Rs. 54,00,000/- from the respondent.

4. The respondent claims to have written a letter dated 12.07.2007 to the appellant in pursuance of the ‘mutual discussions’ regarding the said flat, vacating the flat with immediate effect and waiving the notice period; the respondent in the said letter also sought refund of the amounts deposited with the appellant. The respondent further claims to have written another letter dated 12.12.2008 to the appellant demanding refund of the remaining security deposit of Rs. 2,26,05,872/- with interest at 36% per annum from July, 2007 till the date of payment.

5. The respondent ultimately got issued a legal notice dated 07.05.2010 to the appellant demanding the aforesaid sum of Rs. 2,26,05,872/- with interest and further notifying the appellant that upon non-payment thereof appropriate proceedings including for winding up of the appellant shall be taken. Reply dated 24.05.2010 was given by the appellant to the said notice and in which reply the appellant inter alia stated that the real transaction between the appellant and the respondent was something else which was within the personal knowledge of Mr. Kumar Mangalam Birla (of the respondent) alone and denied the demand of the respondent. A rejoinder dated 06.07.2010 was sent by the respondent to the appellant.

6. Upon the appellant not complying with the notice aforesaid, the petition aforesaid for winding up was filed. The appellant contested the petition pleading that Mr. Anshumaan Swami, Director of the appellant was the Chief Executive Officer (CEO) of the respondent since the year 2002 and had in fact set up the respondent Company as the Entertainment Division of the Aditya Birla Group and engaged in the business of Television, Feature Films etc.; that the respondent Company had also produced the film ‘Black’ which was not only a commercial success but also was critically acclaimed; that Mr. Birla, in appreciation for Mr. Swami, sanctioned an unconditional amount of Rs. 2,50,00,000/- to be paid to Mr. Swami; even otherwise, the said Mr. Swami, as per terms

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