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2013 (6) TMI 301 - MADRAS HIGH COURTWinding up petition - respondent company's inability to discharge admitted liability - respondent company, is indebted to the petitioner for and on behalf of the Bondholders for a sum of USD.64,036,036.29 under the Bonds along with accrued interest and default interest - petitioner has filed this petition in its capacity as a trustee on behalf of the Bondholders - Held that:- This company petition deserves to fail as admittedly, in the present case, under the trust deed authorised the petitioner can maintain the petition for recovery only if 25% of the bondholders authorised the filing of a petition. Inspite of preliminary objection, the petitioner failed to place on record authorisation by the 25% of the bondholders to maintain the present petition. The filing of memo after judgment reserved, is not permissible, as no permission was sought from the court to place additional document or record. The judgment in K.T.S.(Singapore) Plc. Ltd. vs. Associated Forest Products (Pvt.) Ltd. (1993 (1) TMI 243 - HIGH COURT OF CALCUTTA) also cannot advance the case of the petitioner, as the dispute in that case was not the one which raised in this petition. The question to be determined in this case is as to whether the petition as framed is competent or not. Thus as noticed that it is now well settled law that winding up is not legitimate means to enforce the recovery by pressurizing the company to enter into a settlement. The fact that the respondent is a running company is not controverted nor it is controverted that there is financial crunch on account of non receipt of dues form the customers. That being the case, it will be too harsh to order winding up of a running company, merely on the petition by trustee, filed without proper authorisation. Consequently, finding no merit, the company petition is ordered to be dismissed. The petitioner shall however be at liberty to enforce their rights in accordance with law to recover the amount due to bondholders, in terms of Trust deed.
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