2004 (9) TMI 390 - HC - Companies Law

Summary

Issues Involved:
1. Winding up petition under Section 433(e) read with Section 434 of the Companies Act, 1956.
2. Non-payment of debts and dishonoured cheques.
3. Financial difficulties and restructuring efforts of the respondent-company.
4. Legal precedents and principles regarding winding up petitions.
5. Alternative remedies and proceedings before the Debts Recovery Tribunal (DRT).

Detailed Analysis:

1. Winding up petition under Section 433(e) read with Section 434 of the Companies Act, 1956:
The petitions were filed by UTI Bank Ltd. and Karnataka Bank Ltd. for winding up the respondent-company due to its inability to pay debts. The petitions were based on the statutory provisions of Section 433(e) and Section 434 of the Companies Act, 1956, which deal with the winding up of a company unable to pay its debts.

2. Non-payment of debts and dishonoured cheques:
UTI Bank Ltd. sanctioned a short-term loan of Rs. 15 crores to the respondent-company, which was to be repaid by 24th April 2002. The repayment period was extended, but the cheque issued by the respondent-company for repayment was dishonoured. Consequently, UTI Bank issued a statutory notice and initiated criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881. Similarly, Karnataka Bank Ltd. sanctioned a cash credit loan of Rs. 5 crores, which was also not repaid, leading to a statutory notice demanding the outstanding amount. Both banks claimed that the respondent-company failed to discharge its liabilities, justifying the winding up petitions.

3. Financial difficulties and restructuring efforts of the respondent-company:
The respondent-company argued that its financial difficulties were temporary, caused by external factors such as a slowdown in the FMCG industry, price wars, and communal riots in Gujarat. The company claimed ongoing efforts to restructure its debts and revive its business, including negotiations with lenders and a business restructure plan. Despite these claims, the court noted that the financial difficulties persisted for over three years, and the company's financial position worsened, indicating that the financial crunch was not temporary.

4. Legal precedents and principles regarding winding up petitions:
The petitioners relied on various legal precedents to support their case for winding up. Notable cases included:
- Advent Corpn. (P.) Ltd., In re, which held that non-compliance with a statutory notice under Section 434(1)(a) entitles the creditor to a winding up order ex debito justitiae.
- Seksaria Cotton Mills Ltd., which emphasized that failure to comply with a statutory notice without a bona fide dispute justifies a winding up order.
- Focus Advertising (P.) Ltd., In re, which reiterated the creditor's right to a winding up order if there is no bona fide dispute.
- Central Bank of India v. Sukhani Mining and Engineering Industries (P.) Ltd., which stated that filing a suit for debt recovery does not preclude a winding up petition.
- Ramakrishna Industries (P.) Ltd. v. P.R. Ramakrishnan, which held that filing suits does not preclude a winding up petition if the relief sought is different.
- Viral Filaments Ltd. v. Indusind Bank Ltd., which clarified that the admission of a winding up petition need not be preceded by an adjudicated liability.
- Khaitain Overseas and Finance Ltd., In re, and Bharath Overseas Bank Ltd. v. Saritha Synthetic and Industries Ltd., which distinguished between debt recovery suits and winding up petitions.

5. Alternative remedies and proceedings before the Debts Recovery Tribunal (DRT):
The respondent-company argued that the petitions were not maintainable as the petitioners had already filed recovery applications before the DRT. The court, however, noted that the existence of an alternative remedy does not bar the court from entertaining a winding up petition. The court emphasized that winding up proceedings serve a broader purpose, including the interests of all creditors and the overall management of the company's assets.

Conclusion:
The court admitted both petitions and directed UTI Bank Ltd. to issue public advertisements for the admission and final hearing of the winding up petition. The court distinguished the present case from previous cases where temporary financial difficulties were cited, noting that the respondent-company's financial issues were not temporary. The court also considered the broader implications for creditors and the company's management, ultimately deciding that the petitions warranted admission and advertisement. The request for a stay on the order of admission and advertisement was denied.