9911796707
TMI Blog2012 (7) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... r company as per the terms of Omnibus guarantee dated 28.08.2007. As the respondent company failed to make the repayment, the petitioner company by its recall notice dated 26.12.2008, recalled the guarantee facility granted to the respondent and called upon the respondent to repay the outstanding including the interest accrued thereon. The respondent did not come forward to repay the outstanding and therefore, the petitioner forced to appropriated a sum of ₹ 24,50,000/ - along with the accrued interest of ₹ 1,34,84,099/ - as part satisfaction of the dues outstanding from the respondent company's deposit account lying with the petitioner. The petitioner also presented a cheque for a sum of ₹ 40,54,50,000/ - drawn on State Bank of India, Overseas Branch, Chennai issued by the respondent for its obligations to repay the amount when the same because due and the cheque was returned unpaid with an endorsement Exceeds Arrangements . Therefore, a notice under Section 138 of Negotiable Instrument Act, 1881 was issued dated 02.01.2009 calling upon the respondent to pay the sum due and the respondent also admitted their liability to the tune of ₹ 20,02,84,721.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r stated that the respondent has credit facilities with State Bank of India, Chennai for about ₹ 310 Crores and that shows the credit worthiness of the respondent and also listed various datas in paragraph 14 of the reply statement to prove the credit worthiness of the respondent. In the Additional reply statement, the respondent company further stated that it has taken all steps for his revival and 50% of the process was also got completed and respondent company is now getting various projects across the globe and therefore, there is every possibility of the respondent getting more income from those office and the turn over of 3rd quarter of the respondent company is estimated around 20 Crores, which ends up to December 2010 and it is comparatively much higher than 2009 -10 and the respondent company is not commercially insolvent. Further, the petitioner obtained the order dated 11.01.2011 from the Debts Recovery Tribunal -II, Chennai for a sum of ₹ 20,02,84,721.93 and the petitioner company has also filed execution petition to recover the said amount and hence, the present petitioner to wind up the respondent company is not maintainable. In a rejoinder, the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be wound up and no document has been placed by the respondent company to prove its credit worthiness and the respondent gave a proposal on 24.03.2011 agreed to discharge the admitted amount payable to the petitioner in installment and as per the offer, the respondent agreed to dispose of the dues payable by the respondent for a period of five years and as per the schedule of payment, the respondent agreed to pay ₹ 5 lakhs per quarter starting from the second quarter of 2011 -2012 and ₹ 15 lakhs for the first and second quarter of 2012 -13 and ₹ 35 Lakhs for third and fourth quarter of 2012 -13 and thereafter, ₹ 50 lakhs per quarter from 2013 -14 and 2014 -15 and even after giving the proposal, the respondent revised the proposal by its letter dated 19.04.2011 and offered to pay 2.5 lakhs for the first quarter of 2011 -12, ₹ 5 lakhs for the second and third quarter and ₹ 10 lakhs for the 4th quarter and for the years 2012 -13 offered to pay ₹ 15 lakhs for first and second quarter and ₹ 35 lakhs for 3rd and 4th quarters and though the offer was given, no payment was made to show the bonofide and therefore, it cannot be contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors, it is not in the interest of the company to be wound up and even assuming that the company is not able to pay its dues, on that ground the company cannot be wound up and as per the provisions of Section 433 of the Companies Act even after satisfying the requirements as stated in the section, the company can be ordered to be wound up only when it is just equitable and therefore, the petitioner cannot claim wind up of the company as of right and he relied upon the judgments reported in 128 CompCas 402 (Madras) in the matter of Allahabad Bank Vs. Kothari Petrochemicals Ltd., (2011) 1 MLJ 745 (SC) in the matter of IBA HEalth (I) P. Ltd. Vs. Info -Drive Systems Sdn. Bhd. and Vol. 112 ComCas314 (Bombay) in the matter of Dalmia Cement (Bharat) Ltd. Vs. Indian Seamless Steels and Alloys Limited. The learned Senior Counsel for the respondent therefore submitted that in view of the above said judgments no case has been made out by the petitioner for winding up of the respondent company and it is a going concern and the respondent has also proved its potentials and having availed other remedies for recovery of the amount, the present petition for winding up is not legally sustain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for the respondent is that when there is a bonofide dispute, the company cannot be ordered to be wound up and for that proposition the learned Senior Counsel for the respondent relied upon the judgments reported in (2011) 1 MLJ 745 (SC) in the matter of IBA Health (I) P. Ltd. Vs. Info -Drive Systems Sdn. Bhd. and Vol. 112 ComCas314 (Bombay) in the matter Dalmia Cement (Bharat) Ltd. Vs. Indian Seamless Steels and Alloys Limited as stated supra. In the statutory notice issued by the petitioner dated 04.05.2009, the petitioner called upon the respondent to pay a sum of ₹ 20,02,84,721.93 with the interest at the rate of 35% p.a. THE petitioner company also issued a notice under Section 138 of Negotiable Instrument Act when the respondent company failed to honour the cheque issued in favour of the petitioner company. While sending reply to that notice, the respondent in its reply dated 16.01.2009 clearly admitted that the respondent company is liable to pay the said sum and assured that the said sum would be paid with interest as per Reserve Bank of India guidelines and prayed for three months time to pay the said amount. THErefore, it cannot be stated that the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of running concern and considering the larger interest of the employees and workmen, the Court should be very slow in entertaining the winding up petitions. The Court should equally be concerned with the interests of Banks, Financial Institutions, Creditors, Goods suppliers etc. Once having availed credit facilities, taken delivery of goods or received services for valuable consideration, the recipients of such facilities, goods or services will start making defaults in payments or fail to discharge their liabilities, then it would be improper on their part to contend that the unit is a running one and future of large number of employees or workers would be at stake if the petition is entertained and winding up order is passed. Banks Financial Institutions, Supplier of Goods or Services and trade Creditors are also the main backbones of any industry or business organisation and at their peril or disadvantage, the unscrupulous management of the companies must not be allowed to defend winding up petitions under the guise of workers' interests. (ii) Similarly in the judgment reported in (Gujarat) in the matter of Board Opinion Vs. Hathising Mfg. Co. Ltd., it has been held as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
