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2017 (1) TMI 1058 - HC - Companies LawWinding up petition - Held that:- A perusal of Clause 9.1 along with Clause 9.1.1 would show that the petitioner would have recourse qua all receivables emanating from the Approved Debtor, except those which were created by Debtor's Insolvency. Admittedly, the Approved Debtor i.e., BCPMS had become insolvent and the knowledge with respect to the same was available with the petitioner. This fact is laid bare on perusal of letter dated 30.01.2009, issued by KPMG, the Administrators of BCPMS. Furthermore, if there was any doubt with regard to aforesaid it is set to rest upon a perusal of the petitioner's own letter dated 25.08.2009, wherein, it makes a reference to the Administrators of BCPMS. The said letter is a clear pointer to the fact that the petitioner was in touch with the Administrators of BCPMS and, it had, dispatched the said communication, when, the Administrators informed the petitioner that no outstandings were owed by BCPMS to the petitioner. It is, in this context, that the petitioner, by very same letter, indicated to the respondent that, since, it had not protected its title qua the receivables, it was seeking from the respondent the payment of the amounts involved. In support of its stand, the petitioner alluded to Clauses 7 and 9 of GARMA in the said communication. Importantly to lend clarity to the submissions advanced as indicated to the counsel for the petitioner during the course of hearing to advert to the specific sub-clause (8) in Clauses 7 and 9, based on which, it was sought to be asserted that even in a situation where the Approved Debtor had turned insolvent, the petitioner could take recourse to the respondent. We must record that the counsel for the petitioner was not able to point to any provision, which would run counter to the provisions of Clause 9.1.1 of GARMA. As a matter of fact, as indicated in my narration, the 12th Metropolitan Magistrate, Mumbai, in coming to the conclusion that the respondent along with its Directors/guarantors was not guilty of the offence with which they were charged, had based his reasoning on Clause 9.1.1 of GARMA. My view, in the matter, is no different. This apart, the issue raised, in defence, to the present Company Petition by the respondent is alive and pending adjudication in the suit filed by the Directors/Guarantors of the respondent. The defence raised by the respondent is not only bona fide, but is also one of substance, and therefore, it would not be appropriate to allow the petitioner to press ahead, with the instant Company Petition. In this behalf, the argument advanced that the Suit is not filed by the respondent but by its Directors/Guarantor is without merit, as not only is the respondent party to the suit, albeit, as a pro-forma defendant but its liability in law is coextensive with that of its Directors/Guarantors. The issue, if decided, one way, or other would attain finality as amongst the parties to the Suit.
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