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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 ..... f the present Company Petition for winding-up against M/s. Pearl Engineering Polymers Limited, i.e. the Respondent-Company, are as under : "The present Petitioner is a body corporate and is also authorized to carry on banking business in India and constituted under the Laws of Germany. One Asian Finance & Investment Corporation Ltd. ("AFIC") being an institution as per the laws of Republic of Singapore engaged in investment for industrial activities in the Asian Region. Under the terms of an agreement relating to sale of assets and subscription for shares dated 28th February, 2005 ("Purchase Agreement"), ACTIS AFIC Holdings Ltd. agreed to purchase certain financial and investments (including the debts owed by the Respondent Company to AFIC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reafter, vide Trade Confirmation dated 26th March, 2007 executed by AFIC (the Trustee appointed under the Agreement dated 7th June, 2005) and ACTIS AFIC Credit Management Ltd. as also the Petitioner, ACTIS AFIC Credit Management Ltd. with AFIC signed and recorded the terms of the sale of the loan of the Respondent Company to the Petitioner. Pursuant thereto AFIC acting on behalf as investment manager for ACTIS AFIC Credit management Ltd. assigned all its rights, title, interest, obligations, benefits arising under a Loan Agreement dated 30th July, 1993 and the Amendment Agreement dated 24th November, 2003 executed between AFIC and the Respondent Company to the present Petitioners vide Sale and Purchase Agreement dated 30th March, 2007. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow and justify that at any point of time, the Respondent Company admitted the Petitioner's ownership, entitlement and/or agreed to make the payment so claimed. These disputed facts go to the root of the matter. The earlier background, the litigation and the reasons for withdrawal, as reflected in the affidavit, are also additional factors, which unless adjudicated finally, just cannot be overlooked. 8. I have already dealt with in Company Petition No.86 of 2012 (17-10-2012) by referring to the Supreme Court Judgment, IBA Health (India) (P.) Ltd. v. Info-Drive Systems SDN. BHD., [2010] 10 SCC 553, about the effect of disputed questions and facts and the defence so raised in such matter. If it is a bona fide dispute, the Court needs to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, implies insolvency or financial position with other creditors, banking institutions, customers and so on. Publication in the newspaper of the filing of winding-up petition may damage the creditworthiness or financial standing of the company and which may also have other economic and social remifications. Competitors will be all the more happy and the sale of its products may go down in the market and it may also trigger a series of cross-defaults, and may further push the company into a state of acute insolvency much more than what it was when the petition was filed. The Company Court, at times, has not only to look into the interest of the creditors, but also the interests of the public at large." 9. The issues are also with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. There is nothing brought on record to show that they have complied with all these formalities and there is a conclusive decision with regard to the validity of the assignment, transfer and their entitlement to claim the alleged amount, as the lender from the Respondent-Company. There is even a dispute raised with regard to the intimation and/or about valid transfer of Deed of Assignment and the Sale and Purchase Agreement dated 30th March, 2007. The Respondent's RBI approval of 10th June, 2012 to the amendment in original terms and conditions following BIFR sanctioning Rehabilitation Scheme, that itself cannot be to disentitle the Respondent to challenge the ownership/title/entitlement of the Petitioner to claim such alleged due and paya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as filed, is not sufficient to pass the winding-up order against the Respondent-Company. There is no foundation to accept and exercise the discretion that the Respondent-Company "neglect to pay due and "payable/agreed amount". The Petitioner is not remedyless to recover the amount. 14. In view of above, I am inclined to observe that there are various disputed questions of facts are involved; and the amount so claimed cannot be stated to be admittedly due and payable apart from the entitlement of the Petitioner. Therefore, the Petition is dismissed. However, all points are kept open. No order as to costs. 15. In view of the dismissal of the Company Petition itself, nothing survives in the Civil Application and the same is also dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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