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2015 (3) TMI 944 - HC - Companies LawWinding up company - Respondent company had failed and neglected to pay a sum alongwith interest, which was claimed as due and payable by the respondent company on account of the loan agreements - Held that:- where the respondent company has neither disputed, the debt owed to the petitioner bank nor the fact that it has been unable to discharge its debt, the present petition is liable to be admitted. The contention that the petitioner bank is liable to extend a rehabilitation package to the respondent company in terms of the RBI guidelines is disputed. I am also unable to readily accept that the petitioner bank can be compelled to provide further assistance contrary to its commercial wisdom.The question whether the respondent company ought to be finally would up would be considered at a subsequent stage. In the meanwhile, it is open for the respondent company to persuade its creditors to support a rehabilitation scheme or otherwise present a concrete plan for repayment of its debts. - Respondent company owes substantial amounts to the petitioner bank, which the respondent company has been unable to pay on account of its financial position. The claim of the respondent company, that it is entitled to be rehabilitated is an entirely separate controversy and is based on the substratal premise that the respondent company is unable to meet its current liabilities but has the potential to revive. It is implicit in this contention that the respondent company is unable to meet its liabilities and as such a substantial dispute with regard to the respondent company's liability towards the petitioner bank cannot be inferred. Disputes raised by the respondent company cannot be considered as a defence to proceedings under Section 433(e) of the Act. Undisputedly, the respondent company has been unable to meet its liabilities towards the petitioner bank. In this view, the petitioner bank is entitled to maintain the present petition. The reliance placed by respondents to the decision of the Supreme Court in IBA Health (India) (P.) Ltd.(2010 (9) TMI 229 - SUPREME COURT OF INDIA) is also mis-placed. In that case, the Supreme Court had explained that in a case where there is a bona fide dispute as to the liability, the creditor could not prefer a petition for winding up of the company. The Court further held that it is not the duty of the Company Court to hold a full trial in cases where there is a substantial dispute as to the liability owed by the company. Where the respondent company is stated to be making efforts for its revival, I am not inclined to appoint a provisional liquidator, as that may impede the respondent company in its efforts. However, the respondent company shall submit a weekly statement of receipts and expenditure to the Official Liquidaor. Further, the promoters/ directors would not draw any remuneration or incur any liability without the express consent of the petitioner bank. - Application disposed of.
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