9911796707
TMI Blog2017 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... o in person. ORDER Yogesh Khanna, J. 1. The petitioner company is engaged in the business of providing corporate trustee services. The respondent company was incorporated to deal in instrumentation, handling equipment, software and chemicals related to drilling fluids etc as given in its memorandum of association and to do such other business activities. 2. The company is indebted to the petitioner in its capacity as Trustee on behalf of the Bond-Holders for an aggregate sum of USD 84,100,000.33 which represents a gross yield of 5.74% per annum, inclusive of the July Interest calculated on a semi-annual basis along with such amount which continues to increase on a daily basis until the Relevant Date (as defined in the Conditions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Bonds. Copies of Annual Reports are annexed and amount to an unconditional admission of the company's liability inter alia under the Bonds outstanding as at the respective dates. In spite of admitting its liability to make the payments under the Bonds, the company has failed/neglected to discharge its unconditional, absolute or irrevocable obligation to make the payment under the Trust Deeds and the Conditions. Hence, Demand Notice dated 01.08.2013 under Section 434 of the Companies Act was served upon the respondent company. The respondent vide its letter dated 07.08.2013 admitted the receipt of the Notice of Default and Statutory Demand Notice and also admitted its liability to pay the July Interest and proposed to make the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CDR cell, Mumbai on 28.06.2013. Further the respondent in its Notes to Accounts has admitted "drastic decline" in its turnover and is in a bad financial state, providing a strong basis to the fact that its unable to pay its debt. The petitioner also apprehend that the respondent company under the guise of CDR, is attempting to enter into private arrangements with the specific creditors whereby certain benefits are being offered to the said creditors for the purpose of restructuring of debts and is trying to have CDR package without the consent of the petitioner and without making the petitioner a party therein. 11. The respondent company in its reply has admitted the debt but cited reasons beyond its control; viz. prevalent financial mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monstrate its ability to repay admitted amount. On 14.07.2017 the respondent filed an additional affidavit but nothing was stated as to how 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 (alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum of Rs. 75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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