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2015 Supreme(AP) 119
In the High Court of Judicature at Hyderabad
A. RAJASHEKER REDDY, J.
M/s. Mauritius Commercial Bank Ltd. – Petitioner
Versus
M/s. Sujana Universal Industries Limited – Respondent
C.P. No. 169 of 2014
Decided on: 21-04-2015
Advocate Appeared:
For the Appellant:S.Niranjan Reddy, Advocate.
For the Respondent:A. Sudershan Reddy, Senior Advocate.
Headnote:
Corporate Law – Companies Act, 1956 – Sections 433(e), 434(1)(b) and 439 – Company Petition is filed by petitioner – Winding up – Commercial Bank Ltd., under Section 433 Companies Act, 1956 for winding up of the respondent company – Universal Industries Limited company incorporated under the laws of Mauritius and has its registered office in the Republic of Mauritius, which is a wholly owned subsidiary of respondent-company. Hestia entered into a Facility Agreement dated with petitioner Bank under which the petitioner established a Trade Finance Banking Facility of Hestia up to a limit of USD 10 million respondent company executed a deed of guarantee to guarantee the obligations of Hestia under this Facility Agreement for up to USD 10 million petitioner and Hestia agreed to amend the Facility Agreement dated by increasing the limit of facility there under to USD 20 million respondent company executed another deed of guarantee dated to guarantee the obligations of Hestia under the Original Facility Agreement – Held, Learned counsel for the respondent company that it is not liable and except petitioner cannot execute the ex parte foreign Court decree, and no substantial ground is made on what basis they are denying liability under the guarantee agreement dated exists tripartite agreement between the petitioner as a creditor, Hestia as a debtor and respondent company as guarantor and petitioner cannot maintain parallel proceedings, also cannot be sustained as it is already decided by this Court that the petition for winding up can be maintained simultaneously – Merely a creditor is a decree holder it does its character as creditor for the purpose of maintaining petition for winding up. No justifiable reason is stated in the counter affidavit for of the amounts due by Hestia in respect of respondent company stood as guarantor petitioner has established that the Hestia has failed to fulfill its obligations under the agreement dated and also proved that respondent company guaranteed the obligation of Hestia, then respondent company has to fulfill its obligations under the guarantee deed and indemnify the petitioner – After repeatedly requesting for restructuring and time for repayment, once notice for winding up was received the respondent has conjured up all sorts – Before the notice for winding up, the response from the respondent company was only of acknowledging debts, acknowledging the default, seeking time giving fresh proposals. There seems to be a clear attempt on the part of the respondent company to create as many hurdles in the way of petitioner from recovering its money – Company Petition is admitted.
1. This Company Petition is filed by the petitioner, viz., M/s.Mauritius Commercial Bank Ltd., under Section 433(e), 434(1)(b) and 439 of the Companies Act, 1956 for winding up of the respondent company-M/s.Sujana Universal Industries Limited, a company incorporated under the Indian Companies Act, 1956.
2. Facts which are necessary for disposal of the Company Petition are as follows:
The petitioner-Bank is a limited company organized under the laws of the Republic of Mauritius, having its registered office at 9-15 of Sir William Newton Street, Port-Louis, Mauritius and this petition is being filed by its Authorized Signatory Mr.Soham Kumar. The respondent- company was incorporated on 08.10.2003, having its registered office at 41, Nagarjuna Hills, Panjagutta, Hyderabad.
3. M/s. Hestia Holding Ltd., (hereinafter referred to as Hestia) is a company incorporated under the laws of Mauritius and has its registered office in the Republic of Mauritius, which is a wholly owned subsidiary of respondent-company. Hestia entered into a Facility Agreement dated 09.11.2010 with the petitioner Bank under which the petitioner established a Trade Finance Banking Facility in favour of Hestia up to a limit of USD 10 million (for short Facility). On 09.12.2010, the respondent company executed a deed of guarantee to guarantee the obligations of Hestia under this Facility Agreement for up to USD 10 million. On 12.07.2011, the petitioner and Hestia agreed to amend the Facility Agreement dated 09.11.2010 by increasing the limit of the facility there under to USD 20 million (both together known as the Original Facility Agreement). The respondent company executed another deed of guarantee dated 03.08.2011 to guarantee the obligations of Hestia under the Original Facility Agreement. It is stated that as on 22.06.2012, Hestia had drawn around USD 19,997,102/- on various dates between 13.02.2012 and 22.06.2012 being almost the full amount of USD 20 million available under the Amended Facility Agreement.
4. While being so, on 11.08.2012, Hestia defaulted for the first time on its repayment obligation, constituting an Event of Default under clause 2(ii) of the Original Facility Agreement. Petitioner made several demands against respondent for payment as per agreement and respondent went on seeking time for payment which was agreed to. The original facility agreement was amended several times granting extension of time for payment, but respondent never complied with the same. The details of same will be discussed in later part of judgment to avoid repetition of same. Mr. Justice Males of the Commercial Court, Queens Bench, on the application of the petitioner on 08.11.2013, directed that Hestia and respondent company to pay an amount of USD 15,390,115.53 being the principal sum, an amount of USD 1,198,024.28 as interest thereon and a sum of GBP 60,000 to the petitioner towards costs of the legal proceedings, within two weeks from the date of judgment i.e., 08.11.2013. However, Hestia and respondent company failed to pay the same till date. The respondent company owes the petitioner an amount of USD 16,987,493.39 plus GBP 70,000 value in Rs.1,06,66,61,390.18 ps (Indian Rupees One Hundred and Six Crore Sixty Six lakh Sixty One Thousand Three Hundred Ninety and Paise Eighteen only). As the respondent company as well as Hestia failed to honour their obligations, the petitioner has filed two separate execution petitions bearing E.P.Nos.3 of 2014 and E.P.No.4 of 2014 before the City Civil Court, Hyderabad for recovery of the decretal amounts, USD 16,987,493.39 value in Rs.1,05,94,26,123.88 and GBP 70,000 value in INR 72,35,200.00 respectively and same are pending.
5. On 20.05.2014, the petitioner served the statutory notice under sections 433 and 434 of the Companies Act, 1956 on the respondent company and its directors through courier and registered post, which was duly served on them on 21.05.2014 and the same was responded by the respondent vide letter d
