TMI Blog2013 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as ABDL). It is engaged in the brewery business. The petitioner No. 1 is represented by its Director, petitioner No. 2. Petitioner Nos. 2, 3 and 4 are shareholders. Petitioner No.2 and 5 are sisters. Petitioners 3 and 4 are children of petitioner No. 2. Petitioner Nos. 6 7 are the children of Petitioner No. 5. Petitioner No. 8 is the Executor of the estate of M/s. Mehroo Irani who died on 17.02.2005. The petitioner Nos. 3 to 7 are represented by their Power of Attorney holder petitioner No. 2. 2. The respondent is a public limited company, limited by shares, which was earlier known as U.B. Beer Limited. The main objects of the respondent are to carry on the business of brewers and malsters in all its branches and to consolidate all brewery related activities. To carry on all or any of the business of hop merchants and growers, timber merchants and growers, malt factors, corn merchants, wine and spirit merchants, etc. Among the other objects, the company is carrying on the activities of purchase and take over, manage, control undertake or otherwise acquire any business either in part or in entirety and acquire from such business right, properties and assets in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a sum of Rs. 2.00 crores referred to in Clause III(B). Clause III(A)(ii) sets out the basis on which the amount of Rs. 3.23 crores is withheld by the respondent and the circumstances in which and the extent to which, the respondent is liable to pay this amount of 3.23 crores to the petitioners, part by part over the years up to the close of the financial year 2008-09. ( e ) On 28.03.2005, the petitioners and the respondent entered into an Escrow Agreement in respect of the Put Option of the petitioners in respect of their balance 35% in ABDL. Prior to the signing of the Escrow Agreement, the petitioners were told that ABDL was to amalgamate with the respondent. On amalgamation, it was the respondent who would have automatically become eligible to avail of the tax benefit in respect of the past losses of ABDL contemplated in the said Clause and as contemplated in the STASA. ( f ) The amalgamation of ABDL and in particular the de- merged undertaking/brewery business with the respondent was approved by the Hon'ble High Court of Bombay on 7thAugust 2006 in exercise of its powers and jurisdiction under Section 391 to 394 of the Companies Act, 1956 in Company Petition No. 287 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners is not admitted but it is disputed by the respondent. ( c ) That the ingredients of Section 439 is absent and hence, the petition is not maintainable. ( d ) It is the further case of the respondent that the petitioner instituted a suit before the High Court of Bombay seeking recovery of very same amount. Since the suit has been filed for recovery of the said amount, the present petition deserves to be dismissed. ( e ) That the erstwhile ABDL has been amalgamated into United Breweries Limited, the respondent company with effect from 10.03.2011 in terms of the order dated 21.01.2011 of the Hon'ble High Court of Karnataka in COP Nos.259 and 261 of 2010. The respondent as well as the erstwhile ABDL has right from the beginning disputed the liability towards the petitioners and therefore the petitioners cannot go for summary proceedings and this petition for winding up. Hence, the petition deserves to be dismissed on this ground as well. ( f ) That the understanding between the erstwhile promoters of ABDL i.e. the petitioners and UBHL was that in the event of ABDL turning profitable after the acquisition by UBHL and the business losses being set off against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany must be in good faith and must be substantial and the defence must be one, which is likely to succeed in point of law, and the company must also adduce prima-facie proof of the facts or, which the defence depends. That the pendency of a suit is no bar to the maintainability of a winding-up petition. That if the Company has failed to show that the debt is bonafide disputed, it would not render the claim any more disputed or any less just, merely because the creditor is driven to file suits for its recovery. Though a winding-up petition is a mode for recovery of a just debt, the proceedings of winding up, do not partake of the nature of a suit. 6. ( a ) Sri. Udaya Holla, the learned Senior Counsel appearing on behalf of respondent's counsel contends that there are no debts due by the respondent much less an admitted debt. A bonafide dispute has been raised. That the dispute has been raised at the earliest point of time and hence, it cannot be held that the respondent is liable to pay its debts. ( b ) He pleads that there is no debt payable. The amounts would arise only against future profits, if any and hence the debt is based on a contingency. Therefore, it is contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum ofRs.2 crores referred to in Clause III. ( ii ) A sum of Rs.3.23 crores shall be withheld by the Acquirer and credited by the Acquirer to the account of the Company as an interest free unsecured loan of Rs. 3.23 crores to the Company on behalf of the Promoters (the Loan Amount). The Loan Amount shall be repaid and released to the Promoters in the following manner:- ( a ) Such amount as shall be equal to the amount of tax shield availed of by the company by setting off the accumulated losses including depreciation of the Company (as of the Closing Date) against future profits, if any, of the Company, shall be repaid and released to the Promoters each year (in the proportion indicated by them) within 30 days from the date of the Auditors' Certificate (referred to below). ( b ) (c) ( d ) and ( e )** ** **" Therefore, it is contended that the said agreement is clear and the respondent is liable to pay the admitted amount. 9. A reading of the said Clause would clearly show that the payments could be made only against future profits if any to be made by the Company. That only if there are profits and after setting off the accumulated loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Petition was filed seeking to wind up the respondent company on the ground that it had failed to pay its debts in terms of the deed of settlement and other grounds. That the respondent company was obligated by the deed of settlement to make the payment. The learned Company Judge on hearing both the sides admitted the Company Petition holding that the respondent company has established a prima facie case and ordered that the matter be relisted for orders regarding . advertisement. Aggrieved by the said order, an appeal was filed in OSA No.36/2009 before the Division Bench, which came to be dismissed. Both these orders were challenged before the Hon'ble Supreme Court in SLP No. 886/2010. The Hon'ble Supreme Court in the above mentioned decision held at Paras 29 and 30 as follows:- "29. On a detailed analysis of the various terms and conditions incorporated in the deed of settlement as well as the compromise deed and the averments made by the parties, we are of the considered view that there is a bona fide dispute with regard to the amount of claim made by the respondent Company in the company petition which is substantial in nature. The Company Court while exercising its powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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