TMI Blog2012 (12) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of. CO.APP.114/2012. 1. This appeal has been listed on urgent mentioning. The appeal impugns the interim order dated 13th December, 2012 of the learned Company Judge of this Court in Co.Pet. No.558/2012 filed by the respondent for winding up of the appellant Company, restraining the appellant Company/ its directors/ promoters/officers/servants and agents from alienating, encumbering, disposing of, creating or extending any third party interest over its assets, divisions, businesses and subsidiaries (wholly owned or otherwise) except in the normal course of business. It is informed that though the appellant Company thereafter had filed an application before the learned Company Judge seeking certain clarifications and permissions bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 crores out of the total outstanding amounts of ₹ 1891.14 owed to them by the appellant Company; (vii). that the secured creditors and lenders of the appellant Company, based on an independent Techno Economic Viability Study, approved a package of re-structuring terms for the appellant Company under CDR process with respect to its existing debt and future requirements; (viii). that the appellant Company has received a final Letter of Approval (LoA) dated 20th September, 2012 from the CDR Empowered Group, to re-structure debt obligations including interest and additional funding; (ix). that as per the said LoA dated 20th December, 2012, the monitoring institution i.e. the Central Bank of India has been directed to im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... implemented and the process of creating further security would not in any manner deplete the assets of the appellant Company. 3. The senior counsel for the appellant Company has contended that all the assets of the appellant Company are already charged to the banks/lenders who are participating in the CDR process, though admits that for the additional facilities to be granted under CDR process, additional charge as stated in the memorandum of appeal would have to be created. He has however relying on para 22 of M/s Madhusudan Gordhandas and Co. Vs. Madhu Woollen Industries Pvt. Ltd. (1971) 3 SCC 632 contended that the wishes of all the creditors of the Company are material in a winding up and as the secured creditors of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security available to the respondent to recover its dues. Doubts are also expressed about the viability of the revival proposal of the appellant Company. 5. We have given our anxious consideration to the aforesaid rival contentions. As far as the urgency is concerned, it is the case of the appellant Company that the LoA dated 22nd October, 012 supra is only an amendment to the earlier letter dated 20th September, 2012. Even otherwise now that we have finally heard the counsels, the said question looses its relevance. Undoubtedly allowing the appellant Company to sign the documents under the CDR process would tantamount to creation of further charge in favour of the banks/financial institutions which are already having a first charge ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant company. 7. We accordingly modify the interim order dated 13th December, 2012 by permitting the appellant Company to execute the Master Restructuring Agreement under the CDR process aforesaid and on the terms as disclosed in the memorandum of appeal, though with a clarification that the additional/new encumbrances created by the appellant Company under the CDR process shall be without prejudice to the rights of the respondent and subject to further orders that may be passed by the learned Company Judge. On request of the senior counsel for the respondent it is further ordered that the parties to the agreement shall not claim any equities. In view of the above, the appeal stands disposed of. A copy of the order be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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