The court emphasized the discretionary nature of the remedy under Section 433(e) of the Companies Act, 1956 and the importance of exercising judicial discretion in granting further time for payment of admitted dues by a company.

VIBHU BAKHRU, J

1. The present petition has been filed by the petitioner bank under Section 433(e) of the Companies Act, 1956, inter alia, praying for winding up of the respondent company as the respondent has failed and neglected to pay the amounts due and payable to the petitioner bank. The petitioner has also filed an application (CA No.2333/2013) praying for winding up the respondent company.

2. Briefly stated, the respondent had approached the petitioner bank for financial assistance by way of a Working Capital Demand facility of a sum of Rs.15 crores. The petitioner bank agreed to grant such facility and after obtaining the necessary corporate authority, the loan documents were duly executed between the respondent company and the petitioner bank. It is stated that an aggregate sum of Rs.15 crores was disbursed by the petitioner bank to the respondent in the month of October, 2011 as under:-

Date of Request/ Amount (Rs in crores) Date of repayment Loan Account No.

Disbursal

03.10.2011 2.90 31.12.2011 1101043

04.10.2011 2.10 01.01.2012 1101045

04.10.2011 2.50 01.01.2012 1101044

05.10.2011 2.50 02.01.2012 1101047

08.10.2011 3.00 05.01.2012 1101048

10.10.2011 2.00 07.01.2012 1101049

3. It is alleged that the respondent was irregular in making payments of interest and also failed to repay the loans on the respective due dates. The petitioner bank served a legal notice dated 09.01.2012 calling upon the respondent to pay a sum of Rs.15 crores alongwith interest @ 13.50% p.a. w.e.f. 08.01.2012 and other charges etc. It is stated that subsequent to the said notice, the respondent company paid the interest due till the month of November, 2011 but failed to repay the loans as well as the interest for the period subsequent to November, 2011. The cheque for a sum of Rs.15 crores, which had been earlier furnished by the respondent company to the petitioner, was also dishonoured on the presentation.

4. The petitioner company filed the present petition alleging that a sum of Rs.15,15,39,623.81 (Rupees Fifteen Crores Fifteen Lakhs Thirty Nine Thousand Six Hundred Twenty Three and Eighty One paisa) was due and payable by the petitioner as on 17.01.2012. The present petition was taken up for hearing by this Court on 10.02.2012 and the Court while issuing notice, restrained the respondent company from selling, transferring or in any manner alienating its fixed assets till further orders. It is relevant to note that at that stage the petitioner had also filed an application being CA No.283/2012 for appointment of the Official Liquidator as the Provisional Liquidator. However, the said application was not pressed at that stage and was, accordingly, disposed of on 10.02.2012. On the next date of hearing i.e. 13.04.2012, the learned counsel for the respondent sought time to file its reply affidavit and was granted eight weeks time to do so. However, the respondent chose not to file any reply to contest the petition and on the next date of hearing, which was held on 05.09.2012, it was submitted that the respondent company was in the process of restructuring its affairs and the dues of the petitioner as well as other creditors would be considered and worked out by amicable settlements between the respondent company and its creditors. On the basis of the statement made on behalf of the respondent, the petition was re-notified on 17.12.2012 and it was further directed that a proposal to pay all the creditors would be made by the respondent and would be filed in the Court within a period of eight weeks with an advance copy to the learned counsel for the petitioner.

5. Although the respondent had initially sought time to file a reply to the petition and thereafter, sought time to submit a proposal to pay off the debts due to the petitioner as well as other petitioning creditors, the respondent neither filed a reply nor submitted a proposal within the specifie