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2014 (4) TMI 766 - HC - Companies LawWinding up of company - Breach of contract - non payment of dues under derivative transaction - Held that:- The matter must either be documented if the assertions are said to be affirmed on the basis of available records, or, being undocumented, must be to the personal knowledge of the person who affirmed the petition. That affirmation is by one Atulya Sharma, and, as Mr. DeVitre points out, he categorically says that he affirmed the petition on the basis of “information derived from the petitioner’s records”. That must necessarily mean some contemporaneous record of these critical assertions. There is none. What is more puzzling is this reference to 4:30 pm as the transaction time. This is the time after which, according to Deutsche Bank, the Japanese Yen reached the entry level of 118.55 allegedly specified by Finolex. But this time of 4:30 pm IST is inexplicable. Throughout, the reference is only to 3:00 pm Tokyo time, about 11:30 am IST. At the time the Tokyo exchange opened and when, according to Deutsche Bank, the Japanese Yen crossed the barrier event mark, it would have been very early in the morning in India, well before 10:00 or 11:00 am. When, exactly, therefore the Japanese Yen hit the so-called entry-level is unknown. If it reached that level at the specified Tokyo time, 3:00 pm, that was 11:30 am IST, and the contract execution time of 4:30 pm mentioned by Deutsche Bank is meaningless and without cogent explanation. If the Japanese Yen had indeed crossed the entry-level mark, descending from its barrier-event mark at the start of the day’s trading, and if that was at or before 3:00 pm Tokyo time, 11:30 am IST, then there was not only no reason to wait till 4:30 pm, but there is also no explanation for this, nor an explanation as to how the Yen could have crossed the entry-level mark at 4:30 pm IST (about 8:00 pm Tokyo time), given that the transaction is linked to a Tokyobased reporting index and the spot rate for every Fixing Date is pegged to 3:00 pm Tokyo time. There are several crucial, yet careful, elisions in this Company Petition, apparent when it is set beside Deutsche Bank’s Original Application No.160 of 2009 filed before the Debt Recovery Tribunal. Before the latter, Deutsche Bank said there were telephone discussions between Finolex and Deutsche Bank’s Treasury Department in Mumbai. This is not to be found in the Company Petition - There are other such assertions in the Original Application as well - This creates another conflict between Deutsche Bank’s position in two parallel, factually similar but distinct proceedings. If, as Deutsche Bank says in the Original Application before the Debt Recovery Tribunal, there is evidentiary material of this telephone conversations and emails and, in particular, of Finolex specifying an entry point, and if the Term Sheet or Confirmation Sheet are supposed to affirm or confirm these, then one might reasonably expect to see these specifics properly reflected in the signed documentation: an endorsement, perhaps, of the specified entry level, or a confirmation that the document was not to be executed till a certain event happened. There is simply no such evidence. There is no equivalence between a proceeding in the Debt Recovery Tribunal under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 and a winding up petition under Sections 433 and 434 of the Companies Act, 1956. This does not and cannot mean that a company court, in exercise of its equitable jurisdiction, must, only because of the pendency of a proceeding in the other forum, proceed on the a priori assumption that the debt claimed is undisputed - Decided against Petitioner.
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