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TMI Blog2012 (12) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to pay due and "payable/agreed amount". The Petitioner is not remedyless to recover the amount. - Petition dismissed. - CO. PETITION NO. 221 OF 2012, CO. APPLICATION NO. 304 OF 2012 - - - Dated:- 19-11-2012 - ANOOP V. MOHTA, J. Virag Tulzapurkar, Dr. Birendra Saraf, Sachin Chandarana and Shiraz Fatakia for the Petitioner. Arun Khosla and Prakash Punjabi for the Respondent. JUDGMENT 1. The Petitioner, a Foreign Company, constituted under the laws of Germany, has invoked Section 433(e) and 434 of the Companies Act, 1956, (for short "the Act"). 2. The Petitioner has been authorized to carry on banking business in India. The basic facts about the Petitioner-Bank and the reasons for filing of the present Company Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTIS AFIC Labuan Ltd. to hold in trust the assets for the aforesaid companies. Thus, AFIC as trustee of ACTIS AFIC Credit Management Ltd. came to hold the legal title to the said loan and rights thereto. It is pertinent to note that under the terms of the Trust Deed, AFIC, ACTIS AFIC Holdings Ltd. and ACTIS AFIC Credit Management Limited agreed that debts owed by the Respondent Company to AFIC shall be held by AFIC on trust for ACTIS AFIC Credit Management Limited. Thus, the transfer from ACTIS AFIC Holding Ltd. to ACTIS AFIC Credit Management Ltd. of the beneficial interest in the loan took place, with AFIC as trustee continuing to hold the legal title thereto, now as trustee for ACTIS AFIC Credit Management Ltd. Thereafter, vide Trade Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n raised issue of locus standi of the Petitioner to maintain the present Petition. An affidavit-in-rejoinder also filed by the Petitioner. 6. The case of the Respondent is that they have paid the dues on instalments till 31st December, 2005 and thereby discharged the liability of the erstwhile AFIC. There is serious dispute raised with regard to the Sale and Purchase Agreement dated 30th March, 2007, whereby AFIC and the Petitioner entered into the transaction and that resulted into filing of the Petition in May 2012, on the basis of alleged due and payable claim of US Pound 31,28,855 along with US Pound 96,950, due on 30th September, 2006. The aspect of limitation is also important. 7. There is nothing on record to show and justify tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt. 34. A creditor's winding-up petition, in certain situations, implies i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable amount to the erstwhile AFIC was paid in the year 2005 itself. The aspect of violation of the Foreign Exchange Management Act, 1999 and FEMA Regulations, 2000, as averred and as denied is also an additional factor. 10. Let Competent Authority decide and declare finally that the Petitioner fulfils all qualifications to be the lender including the retrospectivity of the SEBI circulars, if any. We are concerned with the invocation of these provisions under the Companies Act and not the action and/or proceedings under the other Acts. There is a substance in the contentions so raised by the learned Senior Counsel appearing for the Respondent that the debt has been secured by mortgaging the immovable property of the Company. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the case. In all these prior proceedings, till the Deed of Assignment and/or sale and purchase transactions, the Petitioner Company was nowhere in picture. The Mortgage deed and the hypothecation of movables and the default clauses therein, are still there to recover the amount due, if any. 13. The documents relied and referred by both the Counsel itself shows that there are various questions, which need to be adjudicated first before accepting the averments of the Petitioner. Unless the transactions based upon which the present Petition is filed by the Petitioner has binding force and unless it is declared accordingly in view of the challenge so raised, I am inclined to observe that the present Company Petition, as f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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