9911796707
TMI Blog2012 (11) TMI 1337X X X X Extracts X X X X X X X X Extracts X X X X ..... nding up. The Respondent Company has been listed on the Bombay Stock Exchange (BSE), National Stock Exchange (NSE) and Luxembourg Stock Exchange. 2 On 4 November, 2005 and 20 May 2006, the Petitioner granted to the Respondent, Reverse Factoring facility initially for a sum of Rs. 14 crores, which was thereafter, increased to Rs. 30 crores. In 2008, the dispute arose between the parties. On 7 July, 2008, the Petitioner issued a recall notice against the Respondent. 3 In 2009, the Petitioner instituted Company Petition No. 884 of 2009 in this Court; Summary Suit No. 2238 of 2009 in this Court; and various criminal complaints under Section 138 of the Negotiable Instruments Act, 1881. The parties settled the disputes/claims recorded according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary, 2010, received in principal approval from Bombay Stock Exchange for issuance of the OCRBs. On 29 January, 2010, the Respondent allotted OCRBs for Rs. 23.67 crores in favour of the Petitioner. On 29 January, 2010, the Respondent paid Rs. 1 crore to the Petitioner vide Pay Order No. 000054. 7 On 16 February 2010, the Respondent's letter to the Petitioner inter alia, recording that the Respondent was willing to repay amount of Rs. 32,50,000/ in lieu of the shortfall in security. On 29 April, 2010, the Petitioner withdrew Company Petition No.884 of 2009 against the Respondent. 8 On 24 January, 2011, the Respondent's Advocate addressed a Notice to the Petitioner, inter alia calling upon the Petitioner to withdraw all the civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te sum of Rs. 31,18,89,184/ with further 18% interest per annum, alleged to be due and payable in respect of the trade finance facilities. The Respondent, by its reply dated 28 June, 2012 resisted the claim/averments in all respects. The Petitioner filed rejoinder dated 4 June, 2012 and reiterated the basic case/submissions. A further affidavit dated 14 August, 2012 was also filed by the Respondent, basically to demonstrate the Respondent's solvency and credit worthiness, referring to Respondent's Auditor's certificate as on 31 March, 2012 to show that the net worth is over Rs. 284 crores. 14 It is necessary to note in the matter, in view of the affidavit and documents so read and referred by the parties, whether there are tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent just cannot be overlooked. The Respondent Company paid Rs. 2 crores by one installment dated 30 December, 2009 instead of paying the amount in installments from October, 2009 to March, 2010. The Petitioner admitted this amount without any protest. 17 There is no dispute that the Respondent got approval from its shareholders and the Bombay and National Stock Exchanges for issuance of the Bond of Rs. 24 crores and accordingly Bond of Rs. 23.67 crores were issued by the Respondent to the Petitioner and the same were accepted by the Petitioner without any protest. The further payment of Rs. 1 crore was made on 29 January 2010. The offering of collateral securities in the sum of Rs. 3.5 crores is also mentioned in the reply to the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of windingup procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of windingup petition as a means of forcing the company to pay a bona fide disputed d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrived at settlement and entered into an agreement and accordingly reflected in the Sanction Letter dated 17 September 2009 and in fact, both the parties have acted upon the same. The alleged breach, if any, of terms and conditions of Last Sanction letter itself means the Court need to consider the rival contentions as well as documents placed on record to justify their respective case/submissions. Having once for restructuring and in fact accepted the payment of Rs. 5 crore and the Bonds worth Rs. 23.67 crores out of Rs. 24 crores as agreed, I am inclined to observe that there was substantial compliance based upon the restructuring in question. The Petitioner, therefore, just cannot reopen and recall the original claim based upon the firs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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