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TMI Blog2011 (11) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ortium to give a loan to a borrower on the strength of a guarantee document, it can never be said that the two banks have entered into a partnership as contemplated under the Indian Partnership Act, 1932 - Held that: the Clause 7 of the Letter of Guarantee, appellant cannot rely upon Section 134(2) of the Indian Contract Act, 1872 - Applications are dismissed - CO. APPL. No. 373 of 2007 - - - Dated:- 30-11-2011 - MANMOHAN, J. Kaanan Kapur and Y.K. Kapur for the Appellant. Atul Sharma, Abhishek Misra, Dr. Ashwani Bhardwaj and Varun Kumar for the Respondent. JUDGMENT 1. Present appeal has been filed under Section 10F of the Companies Act, 1956 (for short 'the Act') challenging the order dated 7th March, 2007 passed by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t facilities granted and to cheques, drafts, bills, notes and negotiable instruments drawn by or for the account of the principal on the Bank and dated or purporting to be dated on or before such date although presented to or paid by the bank after such date and to all guarantees given by the Principal in favour of the Bank and that in the event of my/or any of us dying or becoming under disability the liability of the executor, administrators or legal representatives of such person so doing and of his estate shall continue until the expiration of three calendar months from the receipt by the Bank of an written notice given by such executor, administrators, legal representative for the survivors or survivor of one us) to determine this clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y diminished. ** ** ** 13. In the event of this Guarantee being determined either by notice by me/us or by demand in writing by the Bank, it shall be lawful for the bank to continue the account of the Principal notwithstanding such determination and my/our liability of the moneys advanced or paid or agreed to be advanced or paid and liabilities incurred by the Bank at the date when the guarantee is so determined shall remain notwithstanding any subsequent payment or out of the cash credit by or on behalf of the Principal upto the limit aforesaid." 3. However, prior to registration of charge, appellant had withdrawn its guarantee vide its letter dated 13th November, 2005. The relevant portion of said let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner has communicated to the Company along with Form 8 to be filed with Registrar of Companies vide letter dated 31.07.2006, which was sent to the Company through speed post with a request to sign the form 8 so that form can be filed under the provisions of Section 125 of the Companies Act, 1956. The copy of the letter along with proof of dispatch is enclosed hereto at Annexure A-4. 10. That the applicant did not receive any response from the company till the filing of this petition. The company did not reply or sent signed form No.8 for filing with Registrar of Companies. ** ** ** 12. That the petitioner could not file the form-8 for the above charge now as in re-filing, system does not accept the form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition precedent under Section 141 of the Act had been satisfied for condonation of delay. He also pointed out that prior to filing of the petition under Section 141 of the Act, appellant had vide its letter dated 13th November, 2005 addressed to the two banks revoked its Letter of Guarantee. 10. Mr. Kapur further submitted that the appellant's rights under Section 134(2) of the Indian Contract Act, 1872 could not be wished away as had been done by the CLB. 11. Mr. Kapur also relied upon judgments in Mangalore Chemicals Fertilizers Ltd. v. Company Law Board [2005] 126 Comp. Cas. 261/[2004] 51 SCL 251 (Kar.) and In Re : Reshma Estate (P.) Ltd. [1977] 47 Comp. Cas. 447 (Bom.) 12. On the other hand, Mr. Atul Sharma, learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s petition. 16. Moreover, the underlying reason for filing an application for interrogatories, namely, violation of Section 69 of the Indian Partnership Act, 1932 is misconceived on facts and untenable in law inasmuch as when two banks form a consortium to give a loan to a borrower on the strength of a guarantee document, it can never be said that the two banks have entered into a partnership as contemplated under the Indian Partnership Act, 1932. 17. In fact, the interrogatories sought for by the appellant in its application before the CLB are as under :- "(A) In what share both the banks i.e. United Bank of India and Indian Overseas Bank had advanced the loan to M/s. Naturex Oil (P) Ltd. (B) How and in what proportion the intere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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