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2017 (1) TMI 1167 - HC - Companies LawWinding up petition - existence of any agreement - Held that:- Normally, in a petition seeking winding up on the ground of inability to pay debts, the dispute is with regard to the very liability for the payment of such debt. The question which normally arises is whether such dispute, to the very existence of the debt or the liability to pay the debt, is bona fide and one of substance. In this case, as we have noted earlier, there is no dispute whatsoever with regard to the debt of ₹ 90.90 crores which is due and payable by the company to the petitioning creditor. However, even if we were to proceed on the basis that the institution of a suit for damages against the petitioning creditor, in a given case, constitutes valid defence, it is necessary for the company to further establish that such defence is bona fide, one of substance, likely to succeed in point of law and finally backed by prima facie proof of the facts upon which such defence depends. In the present case, we agree with the learned Company Judge that none of these matters have been established by the company and therefore, there is really no warrant to interfere with the impugned order. There is no material on record to establish even the prima facie existence of any agreement between the company and the petitioning creditor in the matter of sale of the pledged Gitanjali sharers. The minutes of the meeting dated 14 March 2013 do not even remotely spell out any such agreement. Mr. Andhyarujina, was not at all clear as to whether it is the case of the company that there exists any such agreement between the parties. In this case, even if we were to proceed on the basis that there was some obligation upon the petitioning creditor to sell the pledged Gitanjali shares and to adjust the proceeds against the dues payable by the company, such obligation, at the highest, would arise only after the trades matured or debt was actually crystalised some time in June 2013. Admittedly, the trades matured or the debt was crystalised in the present case only in June 2013. By this date, there was already a freeze order made by EOW under section 102 of Cr.P.C. disabling the petitioning creditor from dealing with the pledged Gitanjali shares. There was no legal obligation whatsoever upon the petitioning creditor to sell the pledged shares in order to maintain the margins. Again, even if maximum latitude is extended to the company, we find no unreasonability in the petitioning creditor suspending sales from 25 March 2013, no sooner, they were served with EOW's letter dated 23 March 2013, requiring them not to deal with the Gitanjali shares since EOW was examining complaints made by certain clients of the company in relation to these very shares.There is no dispute that the petitioning creditor did sell almost 2,97,000 Gitanjali shares between 19 March 2013 and 22 March 2013. We completely agree with the reasoning of the learned Single Judge that the petitioning creditor acted quite reasonably in the matter, as otherwise, the possibility of the petitioning creditor or it's directors/officers being proceeded with criminally, could not have been ruled out. There are absolutely no malafides in the action of the petitioning creditor, particularly, when the record indicates that the petitioning creditor immediately took up the matter with the EOW, urging the EOW to withdraw such directions.
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