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TMI Blog2013 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... its branches and to consolidate all brewery related activities. To carry on all or any of the business of hop merchants and growers, timber merchants and growers, malt factors, corn merchants, wine and spirit merchants, etc. Among the other objects, the company is carrying on the activities of purchase and take over, manage, control undertake or otherwise acquire any business either in part or in entirety and acquire from such business right, properties and assets including plants, machinery, lands, buildings, goodwill, liabilities, etc. 3. (a) The company ABDL was originally a partnership firm engaged in the manufacture of beer since 1973 and on ABDL being converted into a company, the shares of the same were held by the petitioners. The petitioners decided to sell to the UB group (of which the respondent is the flagship company) by transfer of the petitioner's shareholding in ABDL. Accordingly the company by name United Breweries Holdings Ltd., (hereinafter referred to as UBHL, for short) which is a sister concern of the respondent, entered into a Share Transfer and Subscription Agreement dated 19.01.2001 (hereinafter referred to as STASA, for short). In terms whereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have automatically become eligible to avail of the tax benefit in respect of the past losses of ABDL contemplated in the said Clause and as contemplated in the STASA. (f) The amalgamation of ABDL and in particular the de- merged undertaking/brewery business with the respondent was approved by the Hon'ble High Court of Bombay on 7thAugust 2006 in exercise of its powers and jurisdiction under Section 391 to 394 of the Companies Act, 1956 in Company Petition No. 287 of 2006 with effect from 1.4.2005. After the said scheme was sanctioned, ABDL continued to exist with a nominal share capital and the rest of the assets and business of ABDL stood merged with the respondent. On 30.9.2008 the petitioner addressed a letter to the respondent stating that since the respondent is about to avail the tax shield by setting off the accumulated losses of ABDL in the assessment of the respondent by the end of the calendar year 2008, they would be entitled to claim the said amount of Rs.3.23 crores from the respondent as per the said Clause of the STASA. Accordingly, the petitioners called upon the respondent to pay the said amount. (g) The respondent replied by its letter dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the erstwhile ABDL has right from the beginning disputed the liability towards the petitioners and therefore the petitioners cannot go for summary proceedings and this petition for winding up. Hence, the petition deserves to be dismissed on this ground as well. (f) That the understanding between the erstwhile promoters of ABDL i.e. the petitioners and UBHL was that in the event of ABDL turning profitable after the acquisition by UBHL and the business losses being set off against the business profits of ABDL, only then the balance was to be paid back to the erstwhile promoters of ABDL for the business losses incurred during their tenure subject to the condition that the said losses were set off before 31.03.2009. (g) In view of the restructuring of the brewing business of the group, the respondent purchased the equity shares of ABDL from UBHL and consequently, ABDL became a subsidiary of the respondent. The understanding with respect of Rs.3.23 crores as in STASA was also reflected in the Memorandum of Understanding entered into between the respondent, ABDL and the erstwhile promoters of ABDL namely the petitioner herein on 23.05.2003. (h) That ABDL neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Senior Counsel appearing on behalf of respondent's counsel contends that there are no debts due by the respondent much less an admitted debt. A bonafide dispute has been raised. That the dispute has been raised at the earliest point of time and hence, it cannot be held that the respondent is liable to pay its debts. (b) He pleads that there is no debt payable. The amounts would arise only against future profits, if any and hence the debt is based on a contingency. Therefore, it is contended that only if there is any future profit and after setting off the accumulated losses, the respondent is liable to repay the same. As stated in the letter of the respondent dated 14.10.2008 vide Annexure R to the petition, the same has been reiterated. The respondent has stated that in terms of Clause III(A)(ii) of STASA, it is clear that the erstwhile promoters can claim the sum of Rs. 3.23 crores only in the event of ABDL turning profitable and upon utilization of such future business profits, if any, for setting off the accumulated business losses in order to avail certain tax benefits. Further, UBL had to write off an amount of Rs. 47.92 crore as goodwill. (c) That a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion indicated by them) within 30 days from the date of the Auditors' Certificate (referred to below). (b) (c) (d) and (e)** ** **" Therefore, it is contended that the said agreement is clear and the respondent is liable to pay the admitted amount. 9. A reading of the said Clause would clearly show that the payments could be made only against future profits if any to be made by the Company. That only if there are profits and after setting off the accumulated losses, only then, the question of payment arises. Under these circumstances, whether the company has made a profit, whether accumulated losses have been absorbed and other issues require to be agitated in an appropriate Court. It is not for the Company Court to interpret these Clauses. 10. A bare reading of the said clause would not render the liability of the respondent to be absolute or undisputed. The petitioners' reliance on the said clause to show the liability of the respondent to make the said payment is opposite to the subsequent clauses wherein it is stated that the amounts shall be arrived at after setting off the accumulated losses and after arriving at the future profits if any. Therefore, whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned decision held at Paras 29 and 30 as follows:- "29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powers under Sections 433 and 434 of the Companies Act, 1956 would not be in a position to decide who was at fault in not complying with the terms and conditions of the deed of settlement and the compromise deed which calls for detailed investigation of facts and examination of evidence and calls for interpretation of the various terms and conditions of the deed of settlement and the compromise entered into between the parties. 30. A company petition cannot be pursued in respect of contingent debt unless the contingency has happened and it has become actually due. ** ** ** In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant Company is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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