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2015 (2) TMI 1000 - HC - Companies LawInvocation of Corporate Guarantees - Default in repayment of dues - Serious disputes involved - Guarantees not valid, void ab-initio - Winding up petition - Winding up petition in case of arbitration clause - Non compliance of provisions of sec.592 and 599 of the Companies Act - Place of business within India Held that:- In the background of the assertion on the part of the petitioners, the respondent was required to prove that they have established a place of business in India as the mere fact that they are having business transaction with Indian customers would not be sufficient. Though the content downloaded purportedly from the website of the petitioner in Co.P.No.122/2012 is produced as Annexures-R8 and R9 to the objection statement, in the rejoinder of the petitioner it is denied that it pertains to them. In that light it is also explained that the screen shot of the web page of the Registrar of companies relied at Annexures-R10 and 11 is of no consequence when there is no requirement to register. Therefore, when it is not shown conclusively that the petitioners herein have established a place of business in India, the bar pleaded under Section 599 of the Act would not apply. The contention of the respondent in that regard is liable to be rejected. A cumulative perusal of the decisions referred to by the learned senior counsel on either side would disclose that the decisions of the Hon'ble Supreme Court and a learned Single Judge of this Court cited by the learned senior counsel for the respondent company are not in the context of maintaining a winding petition as against a recovery proceeding. Further, the decision of the learned Single Judge of the Bombay High Court was on its facts and not as laying down a principle of law. On the other hand the decisions of the Hon'ble Division of this Court and Delhi High Court cited by the learned counsel for the petitioner Banks has held that the winding up petition would be maintainable even in the teeth of the other recovery proceedings initiated. In that view, I am of the opinion that the winding up petition cannot be dismissed by considering it as a parallel remedy as it is a distinct statutory remedy though in appropriate cases, on facts, the Company Court may refuse to exercise its discretion to entertain a winding up petition. A collective perusal of the decisions cited by the learned counsel which has been referred in sufficient detail will disclose that irrespective of the ultimate decision taken in each of the cases cited, the decision leading to the same should be, as to whether the defence set up by the respondent-company is a substantial bonafide defence which is not a moonshine or a mirage of a defence used as a cloak to defeat the petition.n that light, if the facts herein are examined, the fact that the petitioners herein had entered into the transactions with 'Kingfisher' of which the respondent company herein was the holding company is evident. In that view, in respect of the amounts due and payable by 'Kingfisher' the respondent company has executed corporate guarantee to repay the amount. The petitioners despite having invoked the guarantee have not received the payment and in that regard alleging that the respondent company who is to honour the guarantee is unable to pay its debts are before this Court. In that background, the fact that 'Kingfisher' owes the amount to the petitioners herein cannot be in serious dispute and to that extent, the debt is ascertained. For the purpose of reference, a perusal of the decision in the case of Kingfisher Airlines Limited v. State Bank of India and others (ILR 2014 Karn 1739)indicates that the petitioner Banks have initiated winding up proceedings in addition to their security interest, which has been approved by this Court. In so far as the petitioner Banks, the Master Debt Recast Agreement dated 21.12.2010 executed by 'Kingfisher' is produced at Annexure-C to their petition. It is also observed therein that an attempt is being made by the respondent company by taking all possible technical defence only to wriggle out of the situation. In that view, all other contentions urged in the other petitions including the contention raised with regard to not being liable to pay interest as claimed in Co.P.No.99/2013 also will have to be considered as without merit and not as a bonafide defence. Though the learned senior counsel for the respondent company contended that they have deposited a sum of ₹ 1250 crores including FD receipts, the said amount will not satisfy the claim. Further, the said amount is not a voluntary deposit to establish their bona fides and raise the dispute, but the deposit made is pursuant to the orders of this Court in the fringe proceedings relating to the sale of shares. For all the aforestated reasons, the above referred petitions are liable to be admitted. - Decided in favour of appellants.
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