RAJIV SAHAI ENDLAW, J.

1. The appellant appeals against the judgment dated 4th March, 2011 of the Learned Company Judge in the Co.Pet.No.248/2009 preferred by the respondent under Section 433(e) r/w Section 434 of the Companies Act, 1956 whereby Provisional Liquidator of the appellant Company has been appointed and the Directors and officers of the appellant Company have been restrained from selling, parting with possession or creating third party interest in respect of moveable and immovable properties/assets of the appellant Company. Notice of this appeal was issued and on 13th September, 2011 the counsel for the respondent gave an assurance that further hearings of the company petition before the Learned Company Judge would be got adjourned and the Official Liquidator may not takeover charge of the assets of the appellant till the disposal of this appeal.

2. The respondent, in the company petition aforesaid, averred the appellant to be unable to pay its debts of 215,375,000 -CZK (Two hundred and fifteen million three hundred and seventy five thousand Czech crowns) equivalent to about Rs.70 crores due by it to the respondent under a Guarantee Declaration dated 15th March, 2007 and Promissory Notes for the said amount. It was the case of the respondent, incorporated under the laws of Czech Republic that it had entered into an agreement dated 15th March, 2007 with M/s Newco Prague s.r.o., also a Czech Republic company for sale of the 100% equity interest owned by it in SP of W, a.s. also a Czech Republic company for a total sale consideration of CZK 230,000,000 and the appellant herein had guaranteed payment of the full price by M/s Newco Prague s.r.o. to the respondent. It was further the case of the respondent in the winding up petition that M/s Newco Prague s.r.o. failed and defaulted in payment to the extent of CZK 215,375,000 demand wherefor was made on the appellant vide notice dated 1st May, 2009 under Section 433 (e) r/w Section 434 (supra).

3. The Stock Purchase and Sale Agreement dated 15th March, 2007 between the respondent and M/s Newco Prague s.r.o. inter alia provided as under:-

“3.2. Guarantees

3.2.1. Corporate Guarantee. The Purchaser shall procure the irrevocable Corporate Guarantee issued by the company SRM Exploration Private Limited headquartered at D-146, Saket, New Delhi – 110 017 India in favour of the Seller for the aggregate amount of the Purchase Price i.e. the amount of 230,000,000 – CZK (two hundred thirty million Czech Crowns) (hereinafter the “Corporate Guarantee”). The Corporate Guarantee in the wording as enclosed as Schedule 3 of this Agreement will be issued before the Signing date and handed over to the Seller against the hand over of the Shares of the Company as described in section 3.4. of this Article.

3.2.2. Promissory Notes. The Purchaser shall issue the Promissory Notes in the amounts of the particular instalments of the purchase price in order to the Seller provided with aval of the company SRM Exploration Private Limited headquartered at D-146, Saket, New Delhi – 110 017 India. The Promissory Notes will be deposited by into the deed-box at Komereni banka a.s. subsidiary Benesov and handed over to the Seller according to the terms of the Escrow Agreement concluded between the contracting Parties and JUDr. Miloslay Jlndrich, notary acting as a trustee, provided the purchase price has not be paid by the Purchaser duly and in time. The Escrow Agreement will be signed before the signature of the hand-over minutes according to the Sec.3.4. of this Article.

3.2.3. Bank declaration. The Purchaser is obliged to ensure before the signature of this Agreement the statement of the Canara Bank, India with the declaration regarding the good standing of the company of the Guarantor. 3.3. Shares. The Seller shall hand-over 100% of the SPW Shares (i.e. 940 documentary shares in the total nominal value 940,000,000 CZK) to the Purchaser in the procedure as described in the section 3.4. of this Ar