9911796707
TMI Blog2011 (3) TMI 1559X X X X Extracts X X X X X X X X Extracts X X X X ..... main objects, it is alleged in paragraph 7 that the respondent is indebted to the petitioner in aggregate sum of US $ 142,214,060 (US dollars one hundred forty two million two hundred fourteen thousand and sixty only). This amount which is stated to be outstanding is reflected in the particulars of claim annexed and marked as annexure "A" to the petition. In paragraphs 9 to 11 of the petition, this is what is alleged : "9. The company issued US $ 110,000,000 Zero Convertible Bonds due 2009 in the denomination of US $ 1,000 each in registered form (hereinafter referred to as the Bonds). Under the said offering Circular, the Bonds were issued at 100 per cent. of the principal amount on October 25, 2004, the maturity date being October 25, 2009 (maturity date). Unless previously redeemed, converted, or purchased and cancelled, the company had agreed to redeem each of the Bonds at 129.578 per cent. of its principal amount on the maturity date. The petitioner craves leave to refer to and rely upon the terms and conditions of the offering circular dated October 20, 2004, for their true meaning, interpretation and import. 10. On October 25, 2004, as issuer of the Bonds, entered into a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the matters specified in clause 9.8 of the Trust Deed. 4. In the subsequent paragraphs it is alleged that the company did not revert as assured even after the time was granted in that behalf. Therefore, the letter dated May 6, 2009, came to be addressed and the reply was that the application for CDR is an event falling within condition No. 10.1.4 of the Bonds and, for this reason, the company is not in a position to provide certificate confirming that no event of default in respect of the Bonds has occurred. However, the company reported that its application for CDR has now been accepted. In the further paras of the petition, the petitioner points out as to how it addressed a notice of event of default and the company went on stating that a proposal was made to the CDR cell and that on receipt of the formal approval, it would intimate the petitioner and the bondholders and also advise them about the terms of the CDR package and make a proposal for restructuring of the bond/redemption payments. A meeting was proposed with the representatives of the bondholders by the petitioner during the week commencing from July 20, 2009. Thereafter, the company addressed another l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely of Rs. 15,124.75 million for the year ended December 31, 2008. The respondent has 4,750 employees for its operations in India and it employs 1,250 persons through its various subsidiaries. The shareholders' funds as on December 31, 2008, aggregate to Rs. 6,772.66 million, including reserves and surplus of Rs. 6,225.48 million. Any winding up order would seriously prejudice the interest of various persons such as creditors, shareholders, employees, financial institutions, suppliers, etc. Thus, the respondent is a viable undertaking consistently earning large amount of profits for the last more than 10 years. The loss caused in the last financial year was an exception which arose out of the global economic downturn which affected the economy of most corporates in countries across the globe. Thus, there is no compelling reason to wind up the respondent-company as that would result in unemployment of more than 6,000 persons. The Government will also suffer on account of loss of revenue of excise and taxes. The extract of balance-sheet as on December 31, 2008, has been annexed as annexure A to the reply. 7. In paragraphs 5 and 6 of the reply, at pages 426 to 428 this is what is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t maintainable in so far as it has been filed by the petitioner as trustee for the foreign currency convertible bond (the FCCB) holders of the respondent, and not the FCCB holders themselves. The trustee is not a creditor of the respondent. In fact, the State Bank of India and Syndicate Bank, together holding approximately 37.31 per cent. of the principal amount of the outstanding FCCBs have joined the respondent's corporate debt restructuring scheme. The respondent's corporate debt restructuring scheme, framed as per the guidelines laid down by the Reserve Bank of India (the 'RBI'), was sanctioned on July 4, 2009 (the CDR scheme)." 8. In para 7 of the reply it is then stated that without prejudice to the earlier statements, the petitioner is not entitled to any amounts claimed in the petition because by virtue of the Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2000 (for short the FEMA Regulations), no FCCB can have maturity of less than five years and any call and put option cannot be exercisable prior to five years. Under regulation 21 of the FEMA Regulations, an Indian resident may issue FCCBs up to the value of US $ 500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contains "risk factors". The risks associated with redemption of the FCCBs prior to the maturity date were expressly set out. Therefore, it is false to allege that respondents are fraudulently paying some amount to the promoters to enrich themselves in the form of non-compete fee. The allegations with regard to non-compete fees are denied. With regard to the allegation that the respondent is commercially insolvent, while denying the same in paragraph 14 it has been pointed out that the respondent has a definite standing in the market. Further the respondent also pointed out the RBI guidelines for CDR and how the CDR scheme works. The details are pointed out to support the contention that the CDR scheme has inherent safeguards. The respondent justifies the allegation that the petitioner did not join the CDR scheme, although it was in the interest of FCCB holders. 10. The rest of the affidavit in reply contains denials. There is supplementary affidavit in reply filed by the respondent stating therein that a majority of the creditors of the respondent-company amounting to Rs. 15,902 million out of a total value of creditors of Rs. 22,117 million have joined the CDR scheme. The CDR ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s asserted that the petitioner has a right to file a winding up petition. It is stated that as per condition No. 13 of the conditions, no bondholder will be entitled to proceed against the company unless the petitioner, i.e., trustee having become bound to do so fails to do so within reasonable period and such failure shall be continuing. Further, the petitioner has been appointed by the company under the trust deed dated October 24, 2004, as trustee for bondholders. The company is a party to the trust deed and has executed the same. Clause 2.2 creates an obligation on the part of the company to pay to the petitioner. Thus, the petitioner is a creditor of the company by virtue of provisions of the trust deed. The petitioner is, therefore, entitled to file and maintain the petition in its own right as trustee of the bondholders. In any event as more particularly stated in the petition, the trustee is entitled to file and maintain petition under section 439(1)(b) read with section 439(2) of the Companies Act. 13. The petitioner has contended that the CDR scheme is not binding on the petitioner. It is denied that the CDR scheme has been framed as per guidelines issued by the RBI on c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 8 or acceleration of the bonds pursuant to condition 10 would require the prior approval of the RBI'. The contention of the company that the bondholders were aware of the risks associated with the redemption of the bonds prior to the maturity date, i.e., it requires the prior approval of the RBI, is in direct contradiction with its own statement in paragraph 7 of the said affidavit in reply to the effect that the petitioner's claim based on early redemption amount is illegal, and is clearly an admission of its liability to pay the petitioner. Moreover, the issue that any repayment due to acceleration would require prior approval of the RBI is separate from the issue that the company has not paid, or even taken any steps towards payment of the early redemption amount. Further, I submit that the risk will arise only after an application in that regard is made to the RBI. In any event, it is submitted that the company cannot rely upon the clause quoted in the paragraph under reply to justify non payment of the early redemption amount." 14. In paragraph 13 of the rejoinder, the petitioner has reiterated that the promoters of the respondent are seeking to enrich themselves. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has committed event of default and has in fact admitted its liability. Moreover, for the bonds matured for payment on October 25, 2009, at 129.578 per cent of their principal amount, the company is unable to meet the liability even on the matured date and subsequently. In such circumstances, while pointing out that the amount due and payable is not a small amount, it is stated that the defence of the respondent is not bona fide. In paragraph 6 of this supplementary affidavit in rejoinder together with annexure A thereto, it is pointed out as to how CDR is not viable. 16. The petitioner has also filed a further/supplementary affidavit affirmed on December 15, 2010 and filed on January 5, 2011, in which what has been brought on record are the facts relating to letter of understanding. The details have been pointed out in paragraphs 3 and 4 of this affidavit. It is stated that what the letter of understanding effectively states is that each of the instructing holders and the intervening holders confirm to the trust that such holders intend to settle each of their respective claims in connection with defaulting bond, if the company offers settlement proposal with terms reasonable, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposal contained in the letter dated December 3, 2010, addressed by the advocates for the petitioner. The affidavit also highlights the CDR scheme and how under various options prescribed therein, it would be beneficial for the petitioner to become part of the said CDR scheme. It is pointed out that the settlement has been arrived at with creditors worth Rs. 1,363 crores. The amount that is settled is approximately Rs. 362 crores. Certain other claims have also been settled. The sacrifice under the scheme is, therefore, not of such a degree as would raise doubts about the genuineness thereof and the intentions of the respondent-company to repay the creditors. For these reasons it is submitted that the petitioners cannot seek winding up of the respondent and that the petition be dismissed. 19. On January 5, 2011, directions were issued by the court with regard to filing of pleadings/affidavits. The parties having abided by the same and therefore the petition was listed for admission. It is on this entire material that I have heard the submissions of learned senior counsel appearing for the parties. 20. Mr. Dwarkadas, learned senior counsel appearing for the petitioner submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Act. Mr. Dwarkadas submits that as a trustee of bondholders, the petitioner has duty of care and is required to act in the interest of the bondholders or else it could be held liable for breach of duty of care. Thus, the statutory notice is based on the fact that the petitioner has discretion to accelerate redemption of bonds, where event of default has occurred. Therefore, it is false to suggest that the petitioner has no authority to file this winding up petition or that the statutory notice is not valid. Mr. Dwarkadas submits that after issuance of the statutory notice dated October 12, 2009, the bonds matured for payment on October 25, 2009 and the present petition came to be filed on November 5, 2009. Thus, notwithstanding the issuance of notice of acceleration seeking early redemption, even going by the maturity date the respondent-company has failed to pay the bondholders the maturity amount or any part thereof. Thus, the petition is maintainable even otherwise. Mr. Dwarkadas submits that the company's reliance upon the FEMA Regulations, 2000 is totally misplaced as it has been pointed out that the FEMA Regulations referred to by the company in its affidavit in reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. Mr. Dwarkadas submits that apart from the own interest of ICICI, it has been pointed out as to how CDR mechanism is non statutory/voluntary. The CDR mechanism proposes to assume contractual basis through inter creditor agreement and debtor creditor agreement as and when entered into. The inter creditor agreement is binding agreement between creditors who have joined the CDR scheme. Thus, by certain percentage of CDR creditors joining and willing to accept a restructuring package of the existing debts, the same is stated to be binding on remaining CDR creditors. The lenders in foreign currency outside the country are not part of the CDR system. Further, Mr. Dwarkadas submits that the petitioner and the bondholders who are not members of the CDR scheme are not bound by the same. The CDR cell has requested the company to approach non CDR lenders for their approval for restructuring. The petitioners and bondholders having been deliberately excluded from the process of formulation of terms of the purported CDR package, have never agreed to the same. Mr. Dwarkadas submits that the restructuring package purports to operate against outstanding liabilities of the company to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture stock, whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and the trustee for the holders of debentures are by deeming fiction termed as creditors for the purpose of clause (b) of sub-section (1) of section 439 of the Companies Act. Therefore, to state that the petition for winding up cannot be filed by the petitioner is a plea which goes contrary to the statutory scheme. For all these reasons, this petition deserves to be admitted. Mr. Dwarkadas relied upon the following decisions in support of his afore-set out contentions : (1) (2010) 10 SCC 553 - (IBA Health (India) Pvt Ltd Vs. Info-Drive Systems Sdn.Bhd); (2) Company Petition No.960 of 2009 - (Sublime Agro Ltd Vs. Indage Vintners Ltd) decided on 19th March 2010; (3) (1906) 2 Ch.327 - (Crigglestone Coal Co Ltd, Re); (4) Company Cases Vol.III 2002 - (Gramercy Emerging Market Fund Vs. Essar Steel Ltd); (5) Company Cases Vol.116 248 - (Essar Steel Ltd Vs. Gramercy Emerging Market Fund); (6) Company Cases Vol.XXXVI Pg.426 - (Harinagar Sugar Mills Co Ltd Vs. M.W.Pradhan (now G.V.Dalvi), Court Receiver, High Court Bombay); (7) 2002 (1) Mh.L.J. 785 - (In Re: Nilesh Lali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this court should not admit the present winding up petition. 27. Mr. Kapadia submits that in any event, this winding up petition cannot be admitted because the petitioner has no locus to file it. The petitioner cannot file the present petition. He submits that only a individual bond holder can file it. Inviting my attention to section 439 of the Companies Act, 1956, it is submitted by Mr. Kapadia that the trust deed must be read as a whole. He submits that even the conditions on which the bonds have been issued would clarify that there is no question of any entrustment to the petitioner. The petitioner does not have any right in law as the bond holder is the owner of the bond. The scheme is that a global certificate for the total amount of the bond is issued and a portion thereof is given to individual holder. Inviting my attention to the objections raised by the petitioner he submits that there is a specific plea raised to the maintainability of this petition and the right of the petitioner to present it in law. It is false to suggest that in the affidavit in reply no objection has been taken and there is no plea raised in this behalf. Inviting my attention to paragraph 28 page ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow, a right will be conferred on a mere facilitator to present a winding up petition if the construction of the subject provisions, as suggested by Mr. Dwarkadas, is accepted. Once this position in law is understood, then, this petition deserves to be dismissed only on this ground. 30. Alternatively and assuming without admitting that there is a right in the petitioner to file a winding up petition, even then, in absence of the consent of bondholders who are sought to be represented, even if one bond holder has no right to present a petition, it must fail. The petitioner seeks to represent all the bondholders. However, in the affidavit in reply it has been pointed out that two bondholders, viz., Syndicate Bank and Sun Pharma supported the CDR scheme. They have about 25 per cent. bonds approximately. In these circumstances, when two constituents constituting total group of bondholders, have suspect motives and are not acting in good faith, then, the petition must fail. Mr. Kapadia submits that Sun Pharma is competitor of the respondent in the pharmaceutical market. In such circumstances, when the CDR scheme evolves a package which is in the interest of all the creditors and shareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged preferences are fraudulent. Mr. Kapadia submits that this argument is based on the fact that the respondent has settled some claims whereas it decided to contest some others including the present petition. The petitioner is a unsecured creditor. By pressing the winding up petition, it cannot stop business of the respondent which is the very purpose of filing the petition. Therefore, there is no fraud and merely because consent terms have been filed in some petitions by and between the respondent and the creditors concerned therein, is no ground to entertain this petition. He submits that the options under the CDR scheme have been properly explained and, therefore, even the workers are supporting the respondent and the CDR scheme. Those options being exercised does not mean that legal rights have been completely given up or that the claims would be held in abeyance endlessly. For all these reasons, he submits that this petition should not be admitted. 33. In support of his submissions, he relies upon the following judgments : (1) (2003) 6 C.L.J 538 (Guj) - (Gramercy Emerging Market Fund & Ors); (2) AIR 1937 Bom 374 - (Shivramdas & Ors Vs. B.V.Nerurkar & Ors); (3) AIR 191 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a detailed affidavit pointed out as to how the admission of winding up petition would not be in the interest of anybody. The applicant is representative of member banks under the corporate debt restructuring (CDR) mechanism of the Reserve Bank of India in terms of the letter issued by the CDR Cell dated October 30, 2009 and November 25, 2009. It has intervened because the corporate debt restructuring mechanism is in the interest of all. In these circumstances, any order admitting the winding up petition would endanger the claims of the members of the mechanism. Their total outstanding is Rs. 1,775.57 crores. The CDR cell has faith and confidence in the management of the respondent. The chances of revival of the respondent are bright. The applicant ICICI has already put in Rs. 220 crores in the scheme. The CDR has gone forward and the liability being to the extent of Rs. 2,000 crores, this court may not pass any order admitting this winding up petition. That would mean that the CDR scheme and the package cannot be carried forward any longer. In these circumstances and when even the petitioner will have no chance of receiving the amount due, the CDR mechanism should be permitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent to satisfy the claim of the petitioner or to secure it otherwise. Mr. Dwarkadas has invited my attention to the pleading particularly paragraphs 21 and 23 of the petition. He has also invited my attention to some of the relevant annexures to the petition and a letter dated July 4, 2009. He also argued that the promoters of the respondent are enriching themselves endlessly. They are not putting anything personal at stake. They ensured that their shareholding is intact and undisturbed, even if the company goes in red. Therefore, when the CDR scheme does not prevent the promoters from continuing to hold on to their shares nor does it require them to contribute anything, then, the petitioner cannot be told that it should not go ahead with this petition. This is one more reason why the petition should be admitted. 37. With the able assistance of learned senior counsel appearing for the parties, I have perused the company petition and its annexures and some of the affidavits together with their accompaniments. I have also perused the relevant statutory provisions and decisions brought to my notice. 38. Since heavy reliance is placed on the decisions of the Supreme Court ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor or creditors ; or (c) by any contributory or contributories ; or (d) by all or any of the parties specified in clauses (a), (b) and (c), whether together or separately ; or (e) by the Registrar ; or (f) in a case falling under section 243, by any person authorised by the Central Government in that behalf ; or (g) in a case falling under clause (h) of section 433, by the Central Government or a State Government. (2) A secured creditor, the holder of any debentures (including debenture stock) whether or not any trustee or trustees have been appointed in respect of such and other like debentures, and the trustee for the holders of debentures, shall be deemed to be creditors within the meaning of clause (b) of sub-section (1)." 42. In a recent judgment of the Supreme Court IBA Health (I) P. Ltd. (supra) the Supreme Court reiterated the settled principles. The facts are set out in paragraph 8 onwards and in paragraph 20, the Supreme Court set out the question that arose for consideration in that case, viz., when there is a substantial dispute as to liability, can a creditor prefer an application for winding up for discharge of that liability. The Supreme Court held that a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date being October 25, 2009. Unless previously redeemed, converted or purchased and cancelled, the company had agreed to redeem each of the bonds. It is stated that on October 25, 2004, the issuer of the bonds entered into a trust deed with the petitioner for the holders of the bond. Annexure C is a copy of the trust deed. With the assistance of both senior counsel, I have perused the trust deed. The trust deed stipulates that the bondholder will be paid the sums in terms thereof and clause 2.2 is relied upon in this behalf. 44. The definition of the term bondholder means a person in whose name the bond is registered in the register of bondholders and the persons indicated in the definition. The terms "bonds" and "certificate" are defined and the term "global certificate" and "outstanding" are also elaborately defined. The term "potential event of default" is defined to mean an event or circumstance which would with the giving of notice and/or the lapse of time and/or the issuing of a certificate become an event of default. Clause 2.2 reads thus : "2.2 Covenant to pay : The company will on any date when the bonds or any of them become due to be redeemed in accordance with the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interests of the bondholders. Any such determination will be conclusive and binding on the company and the bondholders. 11.19 : Action by the trustee : Notwithstanding anything else contained in this trust deed the trustee shall not be required to take any action prior to making any declaration under condition 10 that the bonds are immediately due and payable (save that it will procure notice to be given to the bondholders of any event of default of which it has actual knowledge or express notice) if such action would require the trustee to incur any expenditure or other financial liability or risk its own funds (including obtaining any advice which it might otherwise have thought appropriate to obtain). The trustee shall not be under any obligation to take proceedings against the company to enforce payment of the bonds after the bonds have become due and payable unless it shall have been indemnified and/or provided with security to its satisfaction." Clause 11.26 is also of some importance so also clauses 12 and 16.2. As far as the terms and conditions of the bonds themselves are concerned, they are at page 280 of the paperbook. A bare perusal of the same would indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified with regard to compliance with clause 9.8 of the trust deed. Since the company did not revert back, even after time being allowed, the petitioner addressed a letter dated May 6, 2009, with the following : "In view of the aforementioned and in accordance with our powers set out in clauses 9.3 and 9.4 of the trust deed, we hereby urgently request you in your capacity as issuer of the bonds to produce a certificate of compliance and no event of default or potential event of default within five calendar days hereof. Note that the certificate should make reference to the trust deed and the notes and should be issued in compliance with the terms of the trust deed. Please provide the said certificate as a matter of urgency and in any event, no later than 5 p.m. (London time) on May 11, 2009. Should you have any queries, please contact Zaira Jehangir on +44 207 964 4981. The trustee hereby reserves all of its rights and the rights of the bondholders under the trust deed, the conditions, any other documents relating to the bonds and at law." 48. To this, reply was received on May 11, 2009 (annexure I-page 336) which reads thus : "We refer to the trust deed dated October 25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, 2009. Once again the company outlined the CDR proposal with its details and stated as under : "In view of the above, we once again request your co-operation and request a meeting with you and the representatives of the bond holders, wherein we can, discuss with you the salient features of the CDR package and a way forward for repayment of the FCCB bonds in a manner that is not prejudicial to any other class of creditors." 53. The petitioners were not satisfied with this response and addressed the statutory notice in reply to which the respondent's advocate in their letter dated October 30, 2009, firstly questioning the authorisation of the petitioner, who represents the bondholders, then, stated that the bondholders to the extent of 40 per cent. have consented to and joined the scheme. It is pertinent to note that the petitioners locus was questioned, but, at the same time both the petitioner as well as the bondholders have been accused of not acting bona fide and pressurising the company. 54. Paragraphs 3, 4 and 5 of the reply then made various proposals to the bondholders and particularly to join the CDR mechanism for the benefit of all creditors, according to the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide powers that are given to the trustees would go to show that there is no substance in the contentions that the petitioner has no authority to file this petition. Once the law recognises the right of any creditor to present a winding up petition and the petitioner is admitted to be a unsecured creditor of the company, then, all arguments about the lack of authority of the petitioner must fail on this ground alone. If the terms and conditions of the bond read with the clauses of the trust deed are considered, then, at least the right of the petitioner to receive payment under the bonds is admitted. If the petitioner allegedly has a limited right and that is to resort to various modes of recovery of money, which is not disputed by the respondent, then, despite being a party to the trust deed granting such a right, the respondent cannot question the locus of the petitioner. Really speaking, the argument to this effect overlooks the fact that the petitioner is treated as a unsecured creditor by the company throughout. Once it treats it as such then strictly speaking it is not necessary to decide any wider controversy. 57. As far as the contention that the petitioners does not satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 9 of the said Act, such a condition against the provisions of the Act by which the creditors are enabled to present a winding up proceeding would be void. Clause 13 only refers to the discretion of the trustee to institute such proceedings against the issuer as it may think fit 'to enforce the terms of the trust deeds and the notes'. The subject of winding up of the issuer company could not have depended on the conditions of the trust deed or the notes. In fact, winding up was not a term or condition of the trust deed or notes. The nature of the proceedings contemplated by the enforcement clause 13 of the conditions of notes was obviously proceedings in personam for recovery of the dues from the issuer company under the trust deed and notes which would be principal and interest and remunerations, expenses and indemnities for the beneficial owners or the trustee, as the case may be. The winding up proceedings under section 439 are not proceedings for recovery of dues, but are proceedings in rem based on statutory grounds on which a company may be wound up by the court such as, a company being unable to pay its debts or if the court is of the opinion that it is just and eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned single judge to direct the trustee to be impleaded as a party to these proceedings. As noted hereinabove, even the company, has in terms, pleaded that the trustee was a necessary party, and, obviously therefore, it cannot grudge against that direction. However, these petitions are maintainable even at the instance of the note-holders in their own capacity as creditors. It is not even the trustee's stand, as is clear from the aforesaid correspondence, that it did not take the proceedings, because, there was no requisite resolution passed by the note-holders as contemplated by clause 13. The stand of the trustee rightly is that the winding up proceedings are not contemplated by clause 13 and that the note-holders who are the creditor beneficiaries were free to initiate them since the notes had become due and payable by virtue of the trustee having issued notices to the company demanding repayment as per the terms and conditions thereof. Thus, there is no substance in the preliminary objection that even if the petitioners are creditors, they do not have an enforceable claim in view of clause 6 of the trust deed or condition 13 of the Notes." I have reproduced the paragrap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seeks the petitioner's approval to agree to postponement of payment to a future date. However, once the petitioner does not agree to any such course in law, it cannot be said that a winding up petition should not be presented by it. There is no absolute right in a creditor and he cannot insist on a winding up order being passed but the court cannot refuse to entertain a petition merely because CDR scheme for settlement of its debts is proposed by the company. A scheme is proposed and the creditors will have to wait for settlement of their dues, by itself, cannot be a ground to refuse the admission of winding up petition. Something more will have to be set out and proved in that behalf. In this case, there may be participation of some bondholders in the scheme and they may choose to wait for settlement of their dues but by that itself and without anything more, this court cannot in the garb of refusing to entertain the winding up petition, issue any directive or require the petitioners to wait in queue for settlement of their dues, if the petitioner does not choose to do so. Moreover, it is not the case of respondent that the petitioner has accepted the CDR scheme or has partici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmission. All the authorities cited need not be considered as this is a stage of admission of the petition. I am aware of the consequences of such an order, but having adverted to the principles in the latest decision of the Supreme Court reported in IBA Health (I) P. Ltd. (supra) it would not be necessary to refer to each and every judgment cited before me. Suffice it to note that this judgment which is relied upon both by Mr. Dwarkadas and Mr. Kapadia reiterates the principles of entertaining a winding up petition and I have proceeded on that basis itself. The Act does not make any distinction between secured and unsecured creditor and, therefore, all other judgments brought to my notice need not be dealt with. 63. The judgments cited by Mr. Kapadia on the principles enshrined in the Indian Trusts Act, 1882, also need not be referred to in detail. Further, these principles have been referred to in the judgment of the hon'ble Gujarat High Court and I have already referred to them in detail and concurred with the views expressed therein. As far as entertaining a winding up petition is concerned, I have applied the very same principles which have been set out in the judgments r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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