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TMI Blog2018 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts are that respondent Kotak Mahindra Bank Ltd. advanced loan to the appellants for carrying out business on personal and corporate guarantees and also by hypothecation and mortgage of properties. The appellants further submit that they have offered corporate guarantee to the facility sanctioned by the guarantors. There are four appeals which are being decided by this common order. 4. In Appeal (l) No.337/2017 appellant Jai Hind Finance (India) Limited happens to be a corporate guarantor to Swaraj Infrastructure Pvt. Ltd. 5. In Second Appeal i.e. Appeal (l) No.339/2017, appellant Swaraj Infrastructure Pvt. Ltd. is borrower of Kotak Mahindra Bank Ltd. 6. In third appeal i.e. Appeal No.338/2017, appellant BULMSK Infrastructure Pvt. Ltd. is a borrower in its own capacity and guarantor to Swaraj Infrastructure Pvt. Ltd. 7. In the 4th appeal i.e. Appeal (l) No.336/2017 appellant Bharat Udyog Pvt. Ltd. again is a borrower and a corporate guarantor for Swaraj Infrastructure Pvt. Ltd. 8. The respondent Kotak Mahindra Bank Ltd. advanced separate loans to these companies. According to learned Counsel the outstanding amount against company as on date is nearly Rs. 25 Crores. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed in paragraph 5 of the notice was to the extent of Rs. 1,14,72,084 which was the value of the goods supplied. As against this the Company has made direct payment to the Petitioner of Rs. 5 lakhs and there is a further adjustment to the tune of Rs. 23,20,141 and Rs. 23,99,487. On the other hand in so far as the principal is concerned, pursuant to the order of the Madras High Court the Petitioner has been secured in a further sum of Rs. 75 lakhs. Considering the above in so far as the principal amount is concerned, there has been either payment or security by the company in favour of the Petitioner. Once the Petitioner is secured for the admitted amount, the company has made out a bonafide defence in so far as the winding up petition is concerned." 13. In the submission of the Counsel, the judgment cited supra lays down principle which supports the proposition propounded by the Counsel that in case of secured creditor, a winding up petition is not an appropriate remedy while referring to the provisions of Section 434(b). The Counsel submits that if execution or other process issued on decree or order of any Court or Tribunal in favour of creditor is returned unsatisfied, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Asian Power Controls Ltd. v/s. Mrs. Bubbles Goyal 2013(3) ALL MR 379, in Paragraph 9 the Court observed as under: "9. The submission in support of the Appeal is that as a secured creditor, it was the obligation of the Respondent to disclose before the Company Court, when the Petition for winding up came up for final hearing as to whether the Respondent chose to enforce her security by standing outside the winding up proceedings or, whether the Respondent wished to stand together with the general body of creditors for realisation of her dues. Now in considering the submission, it must be noted at the outset that a Petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under subsection (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of subsection (1). This position has been enunciated in a judgment of the Company Judge of this Court in Canfin Homes Ltd. v. Lloyds Steel Industries Ltd. 2001 (4) Bom.C.R. 84 : [2002(1) ALL MR 901]. In a judgment of a Division Bench of the Madras High Court in Karnatak Vege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants was made but efforts failed. The secured creditors will be making attempt for the 4th time. The purpose of admission of winding up petitions, according to Counsel is that if there are other creditors, they may approach the Company Court and lodge their claims and in case during pendency of winding up petitions if the advanced loan amount is reimbursed to respondent Kotak Mahindra Bank atleast to the extent of respondent's claim, the appellants would not face any harsh orders. This being the object and purpose of the law, the appeals filed against the orders passed by the learned Single Judge must fail. 17. The Counsel for the appellant submitted that the learned Single Judge ought to have elaborately dealt with the issues raised by the parties. The impugned orders passed by the learned Single Judge lacks proper reasoning for ascertaining as to what weighed with learned Single Judge in admitting the winding up petition. 18. We have perused the record placed before us, considered the submissions advanced, perused the judgments cited supra. The reading of provisions of Sections 434, 439 of the Companies Act is itself clear to indicate that even a secured creditor would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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