9911796707
TMI Blog2017 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... itted and also is out of business and is merely speculating of getting more contracts from ONGC despite having being blacklisted by it from January 2013 till the end of 2014, do show that it had failed in its business. The TEV Report which forms the basis of CDR Scheme too is based on assumptions, caveats or benefits which are largely theoretical. In its reply dated 21.08.2013 to the legal notice, the respondent did not dispute the allegations of the petitioner. Thus considering the huge debt liability of the respondent company coupled with the fact it is out of business and is pulling with scant number of employees, having a negative worth; there is no reason why the petition be not admitted against it. Consequently, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published accordingly also adhering to procedures as detailed in law. - CO. PET. 446/2013 - - - Dated:- 28-7-2017 - Yogesh Khanna, J. Mr.Rajiv Nayyar, Sr. Adv. with Mr.Ashish Mukhi, Adv. for petitioner in Item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agent and the transfer agent in respect of the Bonds and appointing Citigroup Global Markets Deutschland AG as the Registrar. 6. The respondent company entered into a Trust Deed dated 16.07.2010 with the petitioner and appointed the petitioner as the Trustee in respect of said Bonds. The Trust Deed contains numerous covenants including No.2.2 wherein the respondent company covenanted two Business Days prior to any date when the Bonds or any of them become due to be redeemed in accordance with the terms and conditions of Bonds to unconditionally pay or procure to be paid to or to the order of the Trustee in USD in immediately available freely transferable funds, the principal amount of the Bonds becoming due for redemption or repayment on that date, together with any applicable interest and premium (if any). 7. Under Condition No.5.1.1, the respondent was under an obligation to pay the principal, premium or interest due @ 5.0 % pa calculated by reference to the principal amount of the Bonds, payable semi-annually in arrears on 16th January and 16th July in each year; to the principal agent at least two business days prior to the relevant due date for payment. 8. The respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Exchange 16 days prior to the due date of payment of July Interest; that the respondent company had initiated discussions with its lenders to restructure its debt through Corporate Debt Restructuring Mechanism (CDR) it is thus evident that the respondent company is unable to pay its debt under the Bonds to the petitioner and hence the petitioner seeks winding up of the responding company. 10. It is also alleged that the company in its meeting held on 10.07.2013 with some of the creditors had admitted of its tight financial position and need to restructure its existing debt. The company has the service tax liability to the tune of ₹ 2,00,00,00,000/- as on 31.03.2013. The total debt of the respondent has increased from ₹ 5,87,00,00,000/- to ₹ 6,22,00,00,000/- from the Financial Year 2012 to Financial Year 2013. The company did not inform to the Bond-holders about the CDR process which could directly affect the dues owed to the Petitioner on behalf of the Bond-holders. The company in its Consolidated Unaudited Financial Results for the quarter ended on 30.07.2013 released on Bombay Stock Exchange has mentioned about the CDR process and filed Flash Report with C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is going to repay the debt owed to the petitioner or ever demonstrated its ability to repay. 14. Further though respondent contended of paying only interest, but acceptance of such payment after default may require an amendment to the express terms of the Trust Deed as per the procedure prescribed, contained under Condition 14.2 of the Trust Deed but however, even this contention cannot be accepted now in view of the judgment passed on 11.02.2014 but the High Court of Justice Queens s Bench Division, Commercial Court, London. The court had rather directed the respondent to pay USD 84,100,000.33 (along with default interest costs). 15. The CDR scheme as proposed, even otherwise, is not binding upon the petitioner or the Bond Holders since they have never approved of such a scheme. The petitioner in its own right as a creditor, being the Trustee in respect of the Bonds has a locus to file this petition and considering the financial deterioration of the company as is shown in the record submitted and also is out of business and is merely speculating of getting more contracts from ONGC despite having being blacklisted by it from January 2013 till the end of 2014, do show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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