9911796707
TMI Blog1999 (2) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... approached the petitioner-bank for credit facilities. The petitioner-bank granted an in inland letter of credit limit (hypothecation limit of Rs. 1 crore). The respondent-company assigned that contract to the United Database India Ltd. ("UDI"). The respondent-company and UDI executed separate guarantee agreements on 9-3-1988, and 4-7-1988, respectively, in favour of the petitioner-bank. By virtue of those agreements the respondent-company undertook to indemnify the bank from all losses and to repay the loan amount with interest at the rate of 8.5 per cent per annum above the RBI rates subject to minimum of 18.5 per cent per annum compounded quarterly. UDI in order to secure repayment executed an agreement of hypothecation of book debts in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-company and UDI also failed to publish the telephone directories, they, therefore, appointed Sterling Computer Limited ('the Sterling') to publish the Delhi-Bombay directory for the year 1997-98. Consequently, an agreement was entered into between the petitioner-bank, the respondent-company, UDI and Sterling dated 31-3-1992. This agreement was in supersession of the agreement dated 21-10-1991. As per the agreement dated 31-3-1992, the amount payable by Sterling was quantified at Rs. 3.75 crores. On payment of this amount the liability of the respondent-company and UDI was to stand discharged. As part performance of that contract Sterling paid a sum of Rs. 1 crore at the time of signing that agreement. Sterling also issued two post-dated c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings hence this petition has become infructuous. This petition is not maintainable. On the dishonour of the two post-dated cheques issued by Sterling and the petitioner-bank having filed a suit for recovery against Sterling as well as a petition under section 138 of the Negotiable Instruments Act, it cannot for the same amount pursue its remedy against the respondents. A winding-up order cannot be sought against the respondents on the same cause of action. The UDI had in fact taken the loan, the respondent-company was only a guarantor, hence there is no question of commercial insolvency of the respondent-company. The cause of action on the basis of which this petition has been filed does not subsist any longer in view of the agreement da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read as under : '(l )Sterling agreed and undertook under the aforesaid agreement dated 31-3-1992, that the two post-dated cheques referred to above would be encashed upon presentation unconditionally and without demur. (m)On payment of the amount of Rs. 3.75 crores as aforesaid the same would have amounted to full and final discharge of liabilities of Sterling as well as UIP and UDI for all claims of any nature whatsoever which the petitioner had against them in respect of the monies advanced to UDI. (n)In default of payment in the manner stipulated above, the following consequences were to ensue : "(a)The Corporation Bank shall be entitled to demand and receive payment from Sterling the balance outstanding out of the quantified amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the liability of Sterling. Per the books of the bank as on the date of filing of the petition an amount of Rs. 3,83,69,341.80 paise was due against the respondents. Statutory notice dated 17-7-1990, was served on the respondent-company as well as UDI. In spite of the notice annexure P-1 neither the respondent-company nor UDI discharged their liability towards the bank. Since the liability of the respondent-company and UDI is in addition to that of Sterling hence institution of cases against Sterling will not bar this petition nor the said agreement dated 31-3-1992, exonerate these respondents from their liability. Rather the said agreement as quoted above makes it clear that the liability which Sterling took was in addition to the liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X
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