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TMI Blog2016 (3) TMI 1463X X X X Extracts X X X X X X X X Extracts X X X X ..... act assigned the debt to Kotak Mahindra Bank, which later assigned it to the present appellant. On the other hand, the company s counter claim is still pending. The record also shows that the appellant got its foot into the door metaphorically speaking, by offering to the Court which was reluctant to entertain the winding up proceeding- that it would be content accepting the said sum of Rs. 250 lakhs. However, the appellant was not agreeable for that amount and demanded a high rate of interest. This Court is unpersuaded by the submission that the Company Court overlooked the admissions, by way of the balance sheet issued by the respondent; it was shown during the hearing that the explanation for the so called credit liabilities were fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts. On 06.11.1996, the company also entered into a foreign currency loan agreement for the equivalent of ₹ 181 lakhs. Here again, substantial amounts were disbursed by the IDBI. On 10.06.1998, the IDBI called upon the company to pay amounts, which were overdue with interest. It invoked the guarantee clause. Eventually, it preferred recovery proceedings, being O.A. No.445/1998 before the Debts Recovery Tribunal (DRT), Delhi, claiming the sum of Rs. 6,19,93,815/- together with interest and liquidated damages. On 28.05.1999, the DRT issued a Recovery Certificate (RC), which was challenged before this Court in writ proceedings. On 01.05.2000, the Court remitted the matter to DRT for fresh consideration. In this background, in March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redecessors-in-interest, i.e. IDBI and later Kotak Mahindra Bank. However, upon statement on its behalf that it would confine its claims to the OTS amount relied upon by the company, notice was issued on 24.05.2012. On 26.08.2012, a direction was issued to the company to deposit Rs. 250 lakhs, which was to be kept in a fixed deposit. 5. In the impugned judgment, learned Single Judge considered whether it was appropriate to issue an order of winding-up, having regard to the entirety of circumstances. Learned Single Judge considered the submissions from the perspective of whether the offer of the company was accepted by the empowered Committee of the IDBI. The Committee had decided that a counter offer of Rs. 250 lakhs should be made and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wound up on account of its failure to commence business. Having stated the above, I deem it appropriate to also consider the merits of the said contention. 16. In order to consider whether a company should be wound up under Section 433(c) on account of non-commencement of public suspension of business, it would be necessary to investigate whether there is a good reason for the same and whether there is reasonable chance for the company to be revived... XXXXXX XXXXXX XXXXXX 17. The respondent has submitted that it could not commence its business on account of failure on the part of the IDBI to adhere to its obligations. The respondent is also pursuing a counter claim against IDBI and it was contended that the company would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the learned Single Judge s observations that the question of interest and the rate being one of dispute and a mixed question of fact, is erroneous. The appellant points out that the secured creditor has a right to claim contractual rate of interest. Learned Single Judge lastly submitted that the commercial licenses for the business activity of the company were cancelled and that it has no prospects of starting any worthwhile business. 8. Learned counsel for the respondent/company submitted that at the initial stage itself, the learned Single Judge was not satisfied as to the maintainability of winding up petition but in view of the appellant s statement that the claim would be confined to Rs. 250 lakhs, a Show Cause Notice was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Systems Sdn. Bhd , (2010) 10 SCC 553 the position was again reiterated by the Supreme Court as follows: The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bonafide disputed debt. 11. In the present case, whilst there is no doubt that the respondent company had made an OTS offer, there is no material to suggest that this offer was accepted by the IDBI and so communicated. On the other hand, the IDBI in fact assigned the debt to Kotak Mahindra Bank, which later assigned it to the present appellant. On the other hand, the company s counter claim is still pending. The record also shows that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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