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2012 Supreme(Bom) 2135
High Court of Judicature at Bombay
ANOOP V. MOHTA, J.
Deutsche Bank AG
Versus
Pearl Engineering Polymers Limited
COMPANY PETITION NO.221 OF 2012 ALONG WITH COMPANY APPLICATION NO. 304 OF 2012
Decided on : 19-11-2012
For the Petitioner:Virag Tulzapurkar, Sr. Counsel, a/w. Dr. Birendra Saraf, Sachin Chandarana, Shiraz Fatakia, i/by M/s. Manilal Kher Ambalal & Co., Advocates.
For the Respondent:Arun Khosla, Sr. Counsel, a/w. Prakash Punjabi i/by M/s. Prakash Punjabi & Co., Advocates.
Headnote:Code of Communidade, 1961 - Sections 433 and 434 - Winding up petition.
Since documents relied upon by petitioner, showing that there are various questions which need to be adjudicated before accepting petitioner’s averments hence petition liable to be dismissed. - The issues are also with regard to the details of valid/binding assignment of debts/the Sale and Purchase Agreement in question. The aspect of Master Circular for External Commercial Borrowing dated 2nd July, 2012 issued by the Reserve Bank of India and the related Regulations and detailed reasoning to justify the entitlement of the petitioner to file. present petition is also a matter of debate. Certain issues are even pending before the concerned Authorities in this regard between the parties referring to the details of the assignment. Therefore, it is not the question of invalidation and/or illegality of the assignment of loans, but the question is the final authority and entitlement of the petitioner to claim the same. The petitioner specifically averred and contended th at the due and payable amount to the erstwhile AFIC was paid in the year 2005 itself. The aspect of violation of the Foreign Exchange Management Act, 1999 and FEMA Regulations, 2000, as averred and as denied is also an additional factor.
There is nothing brought on record to show that they have complied with all these formalities and there is a conclusive decision with regard to the validity of the assignment, transfer and their entitlement to claim the alleged amount, as the lender from the res pondent- company. There is even a dispute raised with regard to the intimation and/or about valid transfer of Deed of Assignment and the Sale and Purchase Agreement dated 30th March, 2007. The respondent’s RBI approval of 10th June, 2012 to the amendment in original terms and conditions following BIFR sanctioning Rehabilitation Scheme, that itself cannot be to disentitle the respondent to challenge the ownership/title/entitlement of the petitioner to claim such alleged due and payable amount, ;based upon the unregister ed Deed of Assignment and the Sale and Purchase Agreement in question.
The documents relied and referred by both the counsel itself shows that there are various questions, which need to be adjudicated first before accepting the averments of the petitioner. Unless the transactions based upon which the present petition is filed by the petitioner has binding force and unless it is declared accordingly in view of the challenge so raised, the present company petition, as filed, is not sufficient to pass the winding-up order against the respondent-company. There is no foundation to accept and exercise the discretion that the respondent-company "neglect to pay due and "payable/ agreed amount". The petitioner is not remedyless to recover the amount.
That there are various disputed questions of facts are involved; and the amount so claimed cannot be stated to be admittedly due and payable apart from the entitlement of the petitioner.
The Petitioner, a Foreign Company, constituted under the laws of Germany, has invoked Section 433(e) and 434 of the Companies Act, 1956, (for short “the Act”).
2 The Petitioner has been authorized to carry on banking business in India. The basic facts about the Petitioner-Bank and the reasons for filing of the present Company Petition for winding-up against M/s. Pearl Engineering Polymers Limited, i.e. the Respondent-Company, are as under:
“The present Petitioner is a body corporate and is also authorized to carry on banking business in India and constituted under the Laws of Germany. One Asian Finance & Investment Corporation Ltd. (“AFIC”) being an institution as per the laws of Republic of Singapore engaged in investment for industrial activities in the Asian Region. Under the terms of an agreement relating to sale of assets and subscription for shares dated 28th February, 2005 (“Purchase Agreement”), ACTIS AFIC Holdings Ltd. agreed to purchase certain financial and investments (including the debts owed by the Respondent Company to AFIC) from AFIC and to subscribe to the shares of AFIC. The said Purchase Agreement was valid and conditional upon approval of the shareholders of AFIC and grant of order by the High Court of Republic of Singapore to sanction the scheme of arrangement between AFIC, its shareholders and ACTIS AFIC Holdings Ltd. The scheme became effective pursuant to the order dated 10th May, 2005 passed by the High Court of Singapore. Thus ACTIS AFIC Holdings Ltd., became entitled to all rights in respect of the Company's said loan. Thereafter, as a result of the internal arrangement between the ACTIS' group of companies under a Trust Deed dated 7th June, 2005 (“Trust Deed”), AFIC was appointed as a Trustee of ACTIS AFIC Equity Management Ltd., ACTIS AFIC Credit Management Ltd. and ACTIS AFIC Labuan Ltd. to hold in trust the assets for the aforesaid companies. Thus, AFIC as trustee of ACTIS AFIC Credit Management Ltd. came to hold the legal title to the said loan and rights thereto. It is pertinent to note that under the terms of the Trust Deed, AFIC, ACTIS AFIC Holdings Ltd. and ACTIS AFIC Credit Management Limited agreed that debts owed by the Respondent Company to AFIC shall be held by AFIC on trust for ACTIS AFIC Credit Management Limited. Thus, the transfer from ACTIS AFIC Holding Ltd. to ACTIS AFIC Credit Management Ltd. of the beneficial interest in the loan took place, with AFIC as trustee continuing to hold the legal title thereto, now as trustee for ACTIS AFIC Credit Management Ltd. Thereafter, vide Trade Confirmation dated 26th March, 2007 executed by AFIC (the Trustee appointed under the Agreement dated 7th June, 2005) and ACTIS AFIC Credit Management Ltd. as also the Petitioner, ACTIS AFIC Credit Management Ltd. with AFIC signed and recorded the terms of the sale of the loan of the Respondent Company to the Petitioner. Pursuant thereto AFIC acting on behalf as investment manager for ACTIS AFIC Credit management Ltd. assigned all its rights, title, interest, obligations, benefits arising under a Loan Agreement dated 30th July, 1993 and the Amendment Agreement dated 24th November, 2003 executed between AFIC and the Respondent Company to the present Petitioners vide Sale and Purchase Agreement dated 30th March, 2007. Thus the Petitioner became the legal and beneficial holder of all rights inclusive of the rights of recovery of the said loan in its own right.”
3. The Respondent Company availed of a financial assistance including term loan from AFIC in order to establish a plant to produce 17250 TPA of specialty bottle grade polyester chips at Kurkumbh, Plot No.D-17, MIDC Industrial Area, Taluka Daund, District Pune, Maharashtra.
4. As there were constant defaults and the liability was quite huge, the Petitioner had filed a winding-up Petition (291/2010) which was withdrawn with liberty and, therefore, the present Company Petition.
5. The matter listed for admission. The Respondent Company by its
