2018:BHC-OS:3576-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 280 OF 2016 Pearl Engineering Polymers Ltd. Kamanwala Chambers, 2^nd Floor, New Udyog Mandir Premises No.2, Moghul Lane, Mahim, Mumbai-400 016. ….Petitioner.

Vs.

1 Deutsche Bank AG, London, (Having its Office at Winchester House, 1, Great Winchster Street, EC2N 2DB, London)

Through its power of Attorney Holder M/s. Parijatha Business Solution Pvt. Ltd., Having its office at:

312, 5^th “A” Main, HRBR 2^nd Block, Kalyan Nagar, Bengaluru -560042. 2 The Registrar of Companies, Maharashtra, Ministry of Corporate Affairs, Everest Building, Marine Drive, Mumbai-400 002.

3 The Regional Director, Western Region, Mumbai, Ministry of Corporate Affairs, Everest Building, Marine Drive, Mumbai-400 002.

4 Asian Finance and Investments Corp. Ltd. (AFIC), Having its office at : 80, Raffles Place, # 56-01, UOB Plaza-I, Singapore-0104 Through its power of Attorney Holder, M/s. Parijatha Business Solution Pvt. Ltd.

Having its office at:

312, 5^th “A” Main, HRBR 2^nd Block, Kalyan Nagar, Bengaluru -560042. ...Respondents.

Mr. Arun Khosla a/w Mr. Prakash Panjabi i/by Prakash Panjabi & Co.

for the Petitioner.

Dr. Birendra Saraf a/w Mr. Nimay Dave, Mr. Rashid Boatwala, Mr. Vijayendra Purohit i/by M/s. Manilal Kher Ambalal & Co. for Respondent No.1.

Mr. Dhanesh R. Shah a/w Mr. H. V. Mehta for Respondent Nos. 2 and 3.

CORAM : R.M. BORDE AND R.G. KETKAR, JJ.

Reserved on : 31 JANUARY 2018 Pronounced on : 5th MARCH, 2018. JUDGMENT (PER R.M. BORDE, J.):-

Heard the respective counsel appearing for the parties.

2 The Petitioner company is engaged in polyester chips manufacturing and its unit is located at Kurkumbh in Pune District. The company was set up in 1993 however, due to the industrial sickness, it was required to be registered with the Board of Investment and Financial Reconstruction (BIFR), which proceedings concluded with the execution of an amended Loan Agreement dated 24 November 2003 with AFIC i.e. Respondent No.4 herein.

3 The Petitioner Company has borrowed from Respondent No.4 and the borrowing is in the nature of External Commercial Borrowings (ECB). The initial borrowing is in compliance with the provisions of the Foreign Exchange Management (Borrowing or lending in foreign exchange) Regulations-2000, Foreign Exchange Management Act 1999 and in consonance with ECB policy. It is not the matter of doubt that as a result of the failure of the company to repay the debt, the loan agreement came to be terminated. Loan amounting to US$ 3,128,855 together with interest of US$ 96,950.37 was due from the Petitioner as on 30 September 2006. Respondent No.4 entered into a Sale and Purchase Agreement of the debt with Respondent No.1 and the Petitioner's debt qua AFIC came to be assigned to Respondent No.1. An Application was moved by Respondent No.1 for condonation of delay occurred in registering the debt with Registrar of Company-Respondent No.2 herein, and on payment of the charges levied by Respondent No.2 on account of delay and in pursuance to the Application tendered by Respondent No.1, the debt came to be registered with Respondent No.2, on 29 July 2015.

4 The Petitioner is praying for quashment of order dated 29 July 2015 whereby, the loan amount of US$ 4,500,000 approximately equivalent to Rs.1,395 lakhs sanctioned to the Petitioner-company and the outstanding debt of US$ 3,128,855 with underlying Securities, which has been assigned by AFIC to Respondent No.1- Deutsche Bank, in terms of Sale and Purchase Agreement dated 30 March 2007, came to be registered. The Petitioner is also praying for issue of writ of mandamus, directing Respondent No.2 to rectify its register of charges and delete the name of Respondent No.1 or Respondent No.4 therefrom with regard to the Petitioner-company. The Petitioner alleges that, in fact, Respondent No.1 does not have any entitlement to tender an application for registration of debt. The agreement entered into with Re