This petition, seeking winding up of the respondent – Company, is filed under Section 433 (e) & (f) read with Section 439 of the Companies Act, 1956 (for short, ‘the Act’), and Rule 95 of the Companies (Court) Rules, 1959.

2. The petitioner is a subsidiary of State Bank of India (S.B.I.), and is a Company incorporated under the Act. On its amalgamation with S.B.I. Factors and Commercial Services Private Limited, a fresh certificate of incorporation was issued by the Registrar of Companies on 18.03.2010 certifying that the name of the petitioner-Company was changed to S.B.I. Global Factors Limited. The respondent is a Company incorporated under the Act on 8.2.1995, with its registered office at Hyderabad. The authorised share capital of the respondent – Company is Rs.90 crores divided into nine crore equity shares of Rs.10/-each. The main objects of the respondent – company is to generate, harness, develop, accumulate, distribute and supply electricity by setting up thermal power plants by use of liquid, gaseous or solid fuels for the purpose of light, heat, power, and for all other purposes for which electrical energy can be employed.

3. The petitioner accorded the respondent – Company a Trade Finance Facility by its sanction letter dated 21.12.2006 for a maximum amount of Rs.5 crores. The respondent – company accepted the terms and conditions thereof by a resolution of its Board of Directors dated 23.12.2006. Thereafter the respondent – company executed certain documents in favour of the petitioner for availing the said credit facility. At the respondent -Company’s request, a revised sanction letter dated 17.01.2007 was issued. It was made clear therein that, except to the extent of the amendment, the original terms and conditions remained in force. Thereafter another sanction letter dated 18.04.2007 was issued amending the terms and conditions of the earlier sanction letter for Import Factoring Facility. The credit facility sanctioned to the respondent – Company was realigned on 28.06.2007 as set out in the sanction letter dated 28.06.2007, which the respondent – company accepted by the resolution of its Board of Directors dated 02.07.2007. The credit facilities were modified and realigned thereafter also, and the modified terms and conditions were accepted by the respondent – company. At the request of the respondent – company, the facility was renewed by sanction letter dated 26.11.2010, and the limits were reduced to Rs.25 crores. Despite reduction in the overall facility, the respondent – company did not make the payments due under the aforesaid facility. The cheques issued by the respondent – company, towards part payment of the dues, were also dishonoured on presentation, resulting in the petitioner filing a complaint under Section 142 read with 138 of the Negotiable Instruments Act, 1881 (N.I. Act).

4. The petitioner would assert that the respondent – company had acknowledged the debt from time to time, and the liability was subsisting as on date; a statutory notice was issued on 26.05.2011, which was received by the respondent – company’s Managing Director on 30.05.2011; and the respondent – company had replied denying their obligation. According to the petitioner, a sum of Rs.27,10,23,233.15 ps. was due and payable by the respondent – company as on 06.07.2011 with further interest at 18% per annum till the date of full and final payment.

5. In its counter affidavit, the respondent – company would admit that the petitioner had sanctioned a loan of Rs.5 crores under the factoring facility on 21.12.2006, and a further Rs.20 crores under the silent factoring facility on 11.09.2009. They would state that they were utilising the limits since the sanction of the facility, and had been regular in payment of the principal and interest till last year. It is their case that, due to non-finalization of pending issues with the Andaman and Nicobar administration, there had been a huge gap in cash flow amounting to Rs.45