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2017 (6) TMI 302 - BOMBAY HIGH COURT

2017 (6) TMI 302 - BOMBAY HIGH COURT - TMI - Winding up petition - respondent is unable to pay its debts - Held that:- In the facts of this case, the agreement entered into between the parties including the corporate guarantees submitted by the respondent clearly indicates that in the event of foreign customers of the respondent would have refused to make payment to the petitioner, the respondent was liable to pay to the petitioner for such transaction. The respondent had agreed to pay to the pe .....

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. Mr. Pradeep Sancheti, Senior Advocate a/w Mr. Darshit Jain a/w Ms. S.I. Shah i/by M/s. S.I. Shah & Co. for the petitioner. Mr. Sameer Jain a/w Mr. Kantilal Kanojia a/w Mr. Angad Sandhu i/by Mr. P.N. Patwardhan for the respondent. Judgment :- 1. By these two petitions filed under Sections 433 and 434 of the Companies Act, 1956, the petitioner seeks winding up of the respondent company on the ground that the respondent is unable to pay its debts. 2. By consent of the parties, both the petiti .....

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to the prospective overseas buyers. The petitioner agreed to provide its co-operation to the respondent in order to promote the export of gold jewellery. The parties accordingly entered into an agreement dated 15th December 2006 for export of gold jewellery by the respondent through the petitioner to certain prospective foreign buyers as identified by the respondent on the terms and conditions recorded in the said agreement. Clause 10 (b)(v) of the said agreement provided that in the event of n .....

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ses arising out of the said agreement. It was further agreed that in the event of the buyers failing to honour their contractual obligations, the respondent alone shall bear all the risks and costs. 4. It is the case of the petitioner that the respondent obtained various export orders from various foreign buyers. The respondent accordingly exported the gold jewellery to those foreign buyers through the petitioner. The bills/invoices for the sale of gold jewellery were raised on the foreign buyer .....

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post shipment finance facility from time to time from the bankers of the petitioner i.e. Standard Chartered Bank during the said period. It is the case of the petitioner that none of the bills/invoices raised on the foreign buyers for export of gold jewellery were, however, honoured by the foreign buyers on due date. The respondent had issued a corporate guarantee dated 17th June 2008 upto maximum of sum of ₹ 1 crore in favour of petitioner in order to ensure due payment from the foreign b .....

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under the said guarantee as if it were the sole principal debtor and not merely a security. The managing director and one of the directors of the respondent had also submitted their personal guarantees dated 7th January 2010 in favour of the petitioner making themselves personally liable to pay the purchase price of the exported gold jewellery in the event of failure on the part of the respondent to pay the said amount to the petitioner. It is the case of the petitioner that the petitioner from .....

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dent to pay an amount of US$ 7559680 equivalent to Indian ₹ 36,27,65,040/- as on 20th May 2010 along with interest of ₹ 1,99,56,606.79. By a letter dated 28th May 2010, the petitioner also called upon the respondent to pay the said outstanding liabilities of the respondent in view of personal guarantee dated 7th January 2010 submitted by the respondent. The respondent, however, did not make any payment to the petitioner. It is the case of the petitioner that the respondent vide its a .....

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rmal business enabling the said foreign buyers to remit their dues. 9. The respondent vide its letters dated 25th August 2010 and 4th September 2010 requested the petitioner for providing fresh additional financial facility in the form of preshipment and post shipment additional finance assistance. The petitioner through its advocate s letter dated 30th November 2010 issued a statutory notice upon the respondent calling upon the respondent to pay to the petitioner sum of ₹ 41,22,10,222/- i .....

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dated cheques, corporate guarantees and personal guarantees given by the respondent in this Court. On 18th December 2010, the respondent filed an arbitration application (212 of 2011) under section 11 of the Arbitration and Conciliation Act, 1996 in this Court. The respondent filed notice of motion in the said summary suit under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the parties to the Arbitration. Some time in the year 2011, the petitioner filed this winding up pe .....

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urt has dismissed the special leave petition filed by the respondent against the said order 7th October 2015 passed by the division bench of the this Court. 12. On 24th June 2011, the arbitration application filed by the respondent came to be rejected by this Court by observing that such an application will have to be made with the Indian Council of Arbitration. On 6th July 2011, the respondent filed an arbitration application (1797 of 2011) with the Indian Council of Arbitration along with stat .....

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gold jewellery by the respondent through the petitioner, the respondent had committed default in making payment to the petitioner. The foreign buyers also failed to make payment to the petitioner. It is the case of the petitioner that the respondent vide its letter dated 30th June 2009 submitted the Diamond Export Document worth US $ 15281061 to the petitioner for onwards submission to Exim Bank and requested for adjusting the old overdues of Gold Jewellery Account. The respondent also sought p .....

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those cut and polished diamonds. The respondent vide its letter dated 29th December 2009 to the petitioner, as regards the remittance of an outstanding export proceeds for the bills with Standard Chartered Bank is concerned, requested the petitioner to accede an extension as sought by the petitioner from the foreign buyers to work out the situation in a very amicable way. It was further stated that the foreign buyers had made assurances that they would clear all the outstanding dues and therefo .....

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, they would clear all the overdues and therefore had sought an extension of time period. The respondent accordingly requested the petitioner to grant an extension of time period of six months. The respondent requested the petitioner to send the required letter to the Exim Bank to enable them to issue NO ADJUSTMENT FROM THE EXPORT PROCEED letter which would help the respondent to further pursue remittance of old outstanding export proceeds from the foreign buyers since the respondent had to cont .....

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the respondent to allow the buyers to make the payment against the export bills directly to the account of the respondent and suggested that in turn, the respondent shall be submitting to the petitioner the requisite Foreign Inward Remittance Certificate (FIRC) in order to get the GR cleared. The respondent requested the petitioner to give their consent against those 20 bills mentioned therein. 17. On 17th February 2010, the respondent addressed a letter to the petitioner alleging that they had .....

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o give their approval and issue NOC, if possible, so that the export proceeds can be realised from Monday and the petitioner was in a position to clear the pending GR's corresponding to those 20 bills within third week of March 2010. 18. The petitioner addressed a letter dated 14th November 2002 to the Exim Bank enclosing various documents and requested to forward those various documents. The respondent vide its letter dated 23rd February 2010 informed the petitioner that they were pursuing .....

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respect of 20 invoices of gold jewellery from the petitioner as post shipment finance availed from the Exim Bank through the petitioner and simultaneously had fraudulently received double payment in respect of those 20 invoices of gold jewellery from the Exim Bank. The respondent is thus liable to pay to the petitioner 100% remittances received from the foreign buyers for settlement of the Exim bank debts which is still outstanding. 20. It is the case of the petitioner that since the Exim bank .....

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s Bank, the respondent fraudulently did not remit the said remittances to the Exim Bank. Since the export proceeds had not been remitted to the petitioner, the entire outstanding amount of the said 8 invoices of diamond document and other 5 gold jewellery invoices is recoverable from the respondent by the petitioner. It is the case of the petitioner that this company petition is filed by the petitioner against the respondent in respect of the said 8 invoices of diamond document and other invoice .....

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quivalent to Indian ₹ 87,24,63,640/- as the amount due from the foreign buyers as on the date of the said notice. The respondent responded to the said demand notice dated 18th May 2010 and referred the subject matter to the arbitration. By a letter dated 30th May 2010 sent by the respondent through its advocate, the respondent raised a claim of ₹ 110 crores against the petitioner. The respondent thereafter vide its letters dated 25th August 2010 and 4th September 2010 requested the p .....

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tioner. The petitioner forwarded a joint 'Application for RTGS transaction' dated 13th February 2008 in respect of 4 invoices to the State Bank of India with instructions to remit an amount of ₹ 9,59,19,279/- to the respondent. The said amount was debited from the State Bank of India account of the petitioner and correspondingly credited in the bank account of the respondent. The respondent issued a post dated cheque of ₹ 2,66,66,712/- in favour of the petitioner in respect o .....

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in lieu of the amount having credited in the account of the respondent and debited in the account of the respondent but all the cheques were dishonoured with remark stop payment. Sometime in the year 2011, the petitioner filed a summary suit on the basis of the dishonoured cheques, corporate guarantees and personal guarantees. Notice of Motion No.1697 of 2012 filed by the respondent in the said summary suit under Section 8 of the Arbitration and Conciliation Act, 1996 came to be dismissed. Appea .....

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record. He submits that under the said agreement dated 15th December 2006, the realization of export proceeds from the foreign buyers was the responsibilities of the respondent besides the successful execution of the export order. The said contract provided for 'Mode/Terms of Payment'. The petitioner was to retain 1.5% on C.I.F. value of the export as Trading Margin plus 5% towards interest and bank charges etc. and was to pay the balance amount to the respondent against the post dated c .....

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bmits that accordingly, the petitioner had discounted those bills. The foreign buyers, however, did not release any amount to the petitioner in respect of the said gold jewellery items exported by the petitioner. He submits that though the petitioner invoked the corporate guarantees and personal guarantees given by the respondent, the respondent did not pay any amount to the petitioner. 27. It is submitted by the learned senior counsel that as per the terms of the said agreement, the petitioner .....

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ssued by the respondent in favour of the petitioner towards payment of the said 83.5% made by the petitioner to the respondent were also dishonoured with remark stop payment. It is submitted that the petitioner had released payment through its bankers to the respondent in the sum of ₹ 366.54 crore and final payment of ₹ 71,46,05,222/- to the respondent till September 2008. The respondent never raised any objection on the said transaction taken place after September 2008. He submits t .....

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nt finance was made by the petitioner to the respondent as per the agreement dated 15th December 2006. He submits that as regards the statement no.2 at page no.168 of the company petition mentioned in the affidavit-in-reply, a sum of ₹ 52,79,77,683/- has been remitted by the petitioner to the respondent as post shipment finance being 83.5% through its bankers and had raised separate invoices to the foreign buyers towards those transactions. The petitioner had not received any final remitta .....

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voices issued by the petitioner to the said foreign buyers at serial nos.1 to 9 and 13 to 18 of the statement no.2. The said post dated cheques are dishonoured and the petitioner has filed separate proceedings against the respondent on the said dishonoured cheuqes. It is submitted by the learned senior counsel that the respondent had requested the petitioner to adjust overdue payment of the Exim bank against the export document of cut and polished diamond. The petitioner had accordingly adjusted .....

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voices of export of cut and polished diamonds. He submits that the total outstanding amount due and payable by the respondent in respect of the invoices of the export of cut and polished diamonds is in the sum of ₹ 73,30,31,836/-. 31. In the Company Petition No.128 of 2011, learned senior counsel invited my attention to the documents annexed to the petition and also to various affidavits. It is submitted that pursuant to the request made by the respondent for adjusting the outstanding invo .....

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yers towards various invoices directly in its Axis Bank account, the respondent did not pay the outstanding dues of the petitioner despite there being no dispute in respect of the said invoices. He submits that the Axis Bank had already issued a 'Certificate of Foreign Inward Remittance' in respect of the Invoice No.STC/GOLD/MASUMI/0001/09-10 evidencing a payment of US $ 713615. Similar certificates were issued by the Axis Bank in respect of various other invoices. It is submitted by the .....

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spondent being unable to pay its debts, these two company petitions filed by the petitioner deserve to be admitted and the official liquidator be appointed as a provisional liquidator of the respondent-company with all powers under the provisions of the Companies Act, 1956. 34. It is submitted by the learned senior counsel that the petitioner did not make any claim in respect of 8 invoices in these company petitions. The petitioner has been paying the dues of the banks though the amounts were no .....

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ls through the Exim bank whereas the Company Petition No.277 of 2011 relates to the bills discounting by the petitioner through the Standard Chartered Bank. Statement of Outstanding Export Bills finance by the Exim Bank of gold jewellery is relating to 5 invoices whereas 8 invoices are relating to cut and polished diamonds which were replaced with 20 gold invoices. He submits that the respondent has raised a false plea raising a claim of ₹ 11,74,04,418/- against the petitioner instead of p .....

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al tribunal has already issued a direction to the parties to file pleadings. The respondent has already filed statement of claim along with documents before the arbitral tribunal. The respondent has also deposited the fees of the arbitral tribunal including the contribution of the fees of the petitioner. No counter claim has been filed by the petitioner before the arbitral tribunal. He submits that the summary suit filed by the petitioner is still pending. The respondent has already filed the af .....

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It is submitted that the cut and polished diamond documents were without recourse and thus the petitioner could not have raised any claim against the respondent even if the foreign buyers had not released the payment to the petitioner or even if the respondent had not released any payment to the petitioner. He submits that tripartite agreement had been entered into between the foreign buyers, the petitioner and the respondent. It is submitted that the petitioner has received about ₹ 151 cr .....

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ng out of the cut and polished diamond transactions is concerned, the learned counsel for the respondent submits that the petitioner did not invoke arbitration agreement against the foreign buyers. He submits that no amount is received by the respondent from the foreign buyers in respect of the cut and polished diamond transaction. He submits that the respondent is not aware whether the petitioner has received any amount from the Exim Bank or not. Learned counsel for the respondent placed relian .....

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Investment Corporation of U.P. Vs. North India Petrochemicals Ltd. and Anr., reported in (1994) 3 SCC 348 and in particular paragraphs 26 to 30 in support of the submission that the machinery for winding up cannot be allowed to be utilized merely as a means for realising its debts due from a company. Reliance is placed on the said judgment in support of the plea that since the subject matter of this company petition is pending adjudication before the arbitral tribunal, this company petition can .....

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nd not functional, the arbitral tribunal can always find out the nature and status of its assets and can also issue direction and pass orders regarding dues and liabilities and also for taking recourse to appropriate remedy. 41. Mr. Sancheti, learned senior counsel for the petitioner in rejoinder submits that on 20th July 2009, the said so called tripartite agreement is already cancelled. He submits that cancellation of the said tripartite agreement is not challenged by the respondent. The offic .....

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petitioner to grant extension to the foreign buyers to release the payment. He submits that this defence of the respondent is thoroughly dishonest and is contrary to the documents on record. It is submitted that it is the case of the petitioner that the petitioner did not receive any payments from the foreign buyers and thus under the agreement entered into between the parties, it was the responsibility of the respondent to pay to the petitioner in respect of such dues not paid by the foreign b .....

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) No.191 of 2014 in Company Petition No.311 of 2011 and would submit that in the similar facts considered by the Division Bench of this Court, this Court has held that there was no bonafide defence of the company and has admitted the company petition. 43. Division Bench of this Court in the judgment delivered in case of State Trading Corporation of India Ltd. Vs. M/s. Ushma Jewellery & Packing Exports Pvt. Ltd. (supra) has considered the identical facts and has held that the respondent in th .....

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has held that the defence raised by the respondent therein was not bonafide and has set aside the impugned judgment and order dismissing the company petition and has admitted the said company petition filed by the State Trading Corporation of India Ltd. In my view, the facts before the Division Bench of this Court and the facts in this case are identical. The principles laid down by the Division Bench in the said Appeal (L) No.191 of 2014 would apply to the facts of this case. I am respectfully .....

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ve the name of the petitioner from Denied Entity list. 45. Mr.Sancheti, learned senior counsel submits that the said order dated 7th/8th March 2016 passed by the Additional Directorate General of Foreign Trade is not relevant for the purpose of deciding these matters and in any event would not be binding on this Court. He submits that the said order was passed by the appellate authority without hearing the petitioner. REASONS AND CONCLUSIONS:- 46. With the assistance of the learned senior counse .....

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ation of the export proceeds from the foreign buyers was the responsibility of the respondent besides successful execution of the export orders. The shipping documents were to be prepared and signed by the respondent and were to be submitted to the petitioner who was required to present such documents for negotiations with their bank. 47. The petitioner was required to release the said amount after deducting certain charges from the said amount to the respondent. It is not in dispute that the pe .....

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reign buyers did not release the payment to the petitioner on due date or otherwise in respect of some of the invoices. The correspondence further indicates that the respondent had made a request to the petitioner from time to time to permit the respondent to make adjustment of the bills in respect of the cut and polished diamond documents as against the outstanding bills of gold export transaction. Similar request was made by the respondent also to the Exim Bank. The petitioner accepted the sai .....

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that the respondent has received 83.5% of the amount received by the petitioner upon discounting the gold export documents and at the same time received 100% from the foreign buyers in respect of the cut and polished diamond documents. The respondent, however, refused to make any payment to the petitioner or to the bankers of the petitioner with whom the petitioner had discounted those bills. As a result of this non-payment, though the respondent was under an obligation to make payment to the p .....

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summons for judgment is pending is concerned, in my view, even if the petitioner has filed a summary suit against the respondent, there is no bar in prosecuting the winding up proceedings against the same party. The company petition is not for recovery of money claim but is for winding up. 51. I am not inclined to accept the submission of the learned counsel for the respondent that since the arbitration proceeding filed by the respondent is pending before the arbitral tribunal, this Court cannot .....

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the foreign buyers with whom the gold export transaction had taken place did not pay any amount in respect of some of the bills to the petitioner. The respondent was fully aware of non-payment of such amount by those foreign buyers and has expressed difficulty by those foreign buyers to make payment. The respondent had repeatedly requested the petitioner to grant extension of time to the foreign buyers to make payment. At the same time, the respondent also requested the petitioner to allow adjus .....

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indicates that after receiving the amount directly from the foreign buyers through the bankers, the respondent has taken a dishonest stand and has raised a frivolous claim against the petitioner instead of releasing its dues. No counter claim is filed by the respondent in the suit filed against the petitioner. 54. In so far as the submission of the learned counsel for the respondent that there was a tripartite agreement and thus no amount is due and payable by the respondent to the petitioner i .....

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ut the said order are also dismissed. The said suit is still pending. 55. In so far as the submission of the learned counsel for the respondent that cut and polished diamond documents were without recourse and thus no amount could be recovered from the respondent is concerned, the respondent could not produce any document in support of this frivolous plea. If according to the respondent, the said diamond documents were without recourse, the respondent would not have asked the petitioner to grant .....

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y its debts, it would be in the interest of justice, the official liquidator shall be appointed as a provisional liquidator as prayed by the petitioner during the pendency of the petition. 56. In so far as the judgment of the Delhi High Court in the case of German Homoepathic Distributors Pvt. Ltd. Vs. Deutsche Homeopathic- Union Dhu-Arzneimittel Gmbh & Co. (supra) relied upon by the learned counsel for the respondent is concerned, it is not in dispute that the application under Section 8 of .....

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der for winding up of the respondent on the ground that the respondent is unable to pay its debts or on any other grounds. The Delhi High Court in the said judgment in the case of German Homoepathic Distributors Pvt. Ltd. Vs. Deutsche Homeopathic-Union Dhu- Arzneimittel Gmbh & Co. (supra) has held that as regards the prima facie proof of a bona fide character of a counterclaim, the burden lies on the party who sets-up the counterclaim, which burden can be discharged by producing sufficient m .....

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respondent and not for recovery of the money. Judgment of the Delhi High Court in the case of German Homoepathic Distributors Pvt.Ltd.Vs. Deutsche Homeopathic-Union Dhu- Arzneimittel Gmbh & Co. (supra) thus would not assist the case of the respondent. 58. In so far as the judgment of the Supreme Court in the case of Pradeshiya Industrial & Investment Corporation of U.P. Vs. North India Petrochemicals Ltd. and Anr. (supra) relied upon by the learned counsel for the respondent is concerned .....

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o a winding-up order but the exact amount of the debt is disputed, the court will make a winding-up order without requiring the creditor to quantify the debt precisely. It is held that the machinery for winding up will not be allowed to be utilized merely as a means for realising its debts due from a company. 59. In the matter before the Supreme Court, the appellant was not a debtor because it was a financial institution for an amount which was agreed to be subscribed. Neither the learned Single .....

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e respondent had agreed to pay to the petitioner upon those foreign parties paying directly to the respondent subsequently and has also issued cheques which were dishonoured with remark stop payment. In my view, there was a clear debt which was agreed to be paid by the respondent to the petitioner which the respondent failed and neglected to pay and was unable to pay to the petitioner. There is no dispute about the principles laid down by the Supreme Court in the said judgment. The said judgment .....

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r vested in the Court as envisaged under the Companies Act, 1956, however, in terms of the arbitration agreement, the arbitrator can always find out and adjudicate as to whether or not a company is functional and if it was found not functional, the arbitral tribunal can always find out the nature and status of its assets and can also issue direction and pass orders regarding dues and liabilities and also for taking recourse to appropriate remedy. The parties agreed before the Supreme Court in th .....

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Supreme Court who decided the said application under Section 11(6) of the Arbitration and Conciliation Act, 1996 in the year 2008 otherwise also cannot be considered as a binding precedent. The said decision of the learned designated Judge of the Supreme Court thus would not assist the case of the respondent. 61. I therefore pass the following order :- a) Company Petition Nos.277 of 2011 and 128 of 2011 are admitted and shall be made returnable on 21st August 2017. b) The petitioner shall advert .....

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