9911796707
TMI Blog2009 (8) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... ys Operations Limited. It is an admitted position that the Deed of Guarantee was not executed. However, the contention of the respondent Company is that the Deed of Guarantee was executed at UK and therefore, when the goods were supplied by the petitioner to Rosebys Operations Limited(hereinafter referred to as "principal debtor/subsidiary Company" of the respondent Company), at U.K. the cause of action wholly or in part is outside the Indian territory and at UK and therefore, such claim based on Deed of Guarantee is not enforceable. 4. As per the petitioner, the goods/material were supplied to the subsidiary Company of the respondent and the payment has not been made and therefore, the guarantee is invoked. The same is coupled with the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 14.1(a)(i) of the Deed of Guarantee reads as under - "(i) For the benefit of the Supplier, the Guarantor submits to the exclusive jurisdiction of the courts of England and Wales in relation to all claims, disputes, differences or other matters arising out of or in connection with this Deed provided that nothing in this clause shall prevent the supplier in its sole and unfettered discretion, from commencing proceedings against the Guarantor in any court of competent jurisdiction." (Emphasis supplied) 6. Therefore, prima facie it appears that the action by the supplier for commencing the proceedings against the Guarantor in any Court of the competent jurisdiction is not barred. If the respondent Company is registered in Gujarat, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted upon the same, the respondent cannot be permitted to take benefit therefrom. Further, the amount of statutory notice even if considered in toto, is less than $ 100 Million, which is the minimum requirement for seeking sanction of RBI. If the contention of the respondent Company is that on account of any transaction by wholly owned subsidiary Company abroad, the Guarantee as was to be given by the respondent Company being Indian party, the permission of RBI was required to be obtained, then also, such obligation would be upon the respondent Company to obtain the permission. Even if the contention is considered for the sake of examination that the permission was not obtained, the respondent Company cannot get away from its liability to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d every contention of the plaintiff, but thereby, it cannot be said that there is no foreign judgement against the respondent Company. After having being served the statutory notice by the petitioner, nothing prevented the respondent Company for filing the suit for a declaration that the decree is not binding, but such option available has not been exercised. Further, when there is a decree/judgment of a foreign Court for fastening the liability, it cannot be prima facie said that their would not be any liability at all of the respondent. In any case, the aspects of non-enforceability may be required to be considered in execution proceeding, if resorted to, but such cannot be a sole ground to deny the entertainment of the petition for windi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had it been a case where this Court finds that the defence is genuine or non dishonest or substantial, it may stand on different footing. But in a case where neither of the situation arise and the matter is at the stage of admission of the petition, it would profitable to extract certain observations of this Court in the case of Ficom Organics Ltd. Vs. Laffans Petrochemicals Ltd. reported in (1998) 5 Comp LJ 24 (Guj). This Court in the said decision made the observations as under: "IV COURT'S FINDINGS ON BONA FIDES OF COMPANY'S DEFENCE AND ORDERS WHICH MAY BE PASSED UPON SUCH FINDINGS (1) After considering the material on record, if the Court comes to the conclusion that the defence raised by the Company is not only not bona fid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. tentative finding because the controversy can be finally decided in the civil suit. Of course, such a finding is bound to result into the Company (defendant in the suit) getting unconditional leave to defend (which would be perfectly just and proper) in case the petitioner files a summary suit for recovering the debt in question. (5) If the case falls in the grey area, that is, the Company's defence is neither found to be substantial nor a moonshine and, therefore, the Court is not in a position even tentatively to give a finding one way or the other whether the defence is bona fide or not, the Court may require the Company to deposit the claim amount or a part thereof in the Court and require the petitioner to prove its claim befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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