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2014 (3) TMI 756 - BOMBAY HIGH COURTWinding up - intervention by the ICICI Bank as fresh applicant showing ignorance of earlier winding up petition by BNYM as a trustee for some holders of unsecured foreign currency convertible bonds issued in 2007 by GOL Offshore. - Applicant (ICICI bank) sought reliefs inter alia in relation to 352 sq ft jack-up rig known as Rig V-351 or Rig Somnath. - Held that:- In my view, what ICICI Bank seeks is the creation of an additional security in its favour over Rig V-351, although there is no such pre-existing security, and although ICICI Bank is otherwise sufficiently secured for any claim that it might have against GOL Offshore. - ICICI Bank’s claim is not yet due. There is the matter of the peculiar cast of ICICI Bank’s prayers, expansive in scope and far-reaching in consequence. They seek nothing less than a complete sequestration of the rig to ICICI Bank to the exclusion of all others. Mr. Dwarkadas and Mr. Madon may not be entirely incorrect in saying, therefore, that the present application is mala fide and mischievous, and is nothing but an attempt to hijack the jack-up rig. In this scenario, where it does not appear that ICICI Bank’s application has any semblance of bona fides, and is, prima-facie, nothing but an attempt to steal a march on a large body of creditors, both secured and unsecured, I do not see why I should exercise any discretion at all in favour of ICICI Bank. It is not enough, in my view, for an applicant to show that it is a secured creditor and to therefore claim intervention as a matter of right. Were that so, there would be no question of discretion under Section 557 of the Companies Act; every creditor would be instantly legally entitled to intervention. Where an application is found not to bona fide, that discretion cannot be exercised. So it is in this case. The application must, in my view, be dismissed in its entirety. Such an applicant, wholly wanting in bona fides, cannot claim the exercise of discretion in its favour. Application of ICICI Bank dismissed with Cost. - ICICI Bank shall pay to BNYM and GOL Offshore each costs quantified at Rs.2.5 lakhs. - Decided against the petitioner.
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