TMI Blog2017 (12) TMI 1725X X X X Extracts X X X X X X X X Extracts X X X X ..... und up. Therefore, the petition is allowed. - COMPANY PETITION NO.756 OF 2014 WITH COMPANY PETITION NO.119 OF 2015 - - - Dated:- 4-12-2017 - MR K. R. SHRIRAM, J. For The Petitioner : Mr. Charles J. Desouza a/w. Ms. Aneesa Cheema i/b. Verus for petitioner in CP/756/2014. For The Respondent : Mr. Kunal Chedda i/b. M.V. Kini and Co. ORDER P.C.: COMPANY PETITION NO.756 OF 2014 1 This petition alongwith another petition no.119 of 2015 was called for admission before this Court on 5th May, 2017. In both the petitions, petitioners were seeking winding up of respondent company on the ground that respondent is unable to pay its debts and commercially insolvent. Both these petitions were heard together and common order of admission was passed. The facts in company petition no.756 of 2014 as noted in the order dated 5th May, 2017 are as under : 2. On or about December, 2009, the petitioner sanctioned a term loan of ₹ 75.00 crores towards part financing amongst others to the respondent. The parties accordingly executed Dual Currency Loan Agreement on 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case of the petitioner that since the said Great Offshore (International) Limited committed default in adhering to the repayment conditions set forth in the first Facility Agreement and the second Facility Agreement, the petitioner by a letter dated 29th May, 2014 recalled the said loans and called upon the said Great Offshore (International) Limited to pay an amount of US $ 44,572,935.60 which was outstanding as on 31st December, 2014 within a period of seven days from the date of the said letter. It is the case of the petitioner that since the Great Offshore (International) Limited failed to comply with the demand made by the petitioner in the letter dated 29th May, 2014, the petitioner invoked the first Deed of Guarantee and second Deed of Guarantee issued by the respondent herein and by a letter dated 10th June, 2014 called upon the respondent to pay an amount of US $ 44,572,935.60 outstanding as on 31st March, 2014 within seven days from the date of the said letter. The respondent however, failed and neglected to comply with the said demand made vide letter dated 10th June, 2014. 7. The petitioner accordingly issued a statutory notice upon the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent. 67% of the revenue generated by the respondent is from the Government project. The respondent earns 70% of the income from the charter hire from the ONGC. He submits that if the company petitions are admitted by this Court, the ONGC may terminate the contract. It is submitted that insofar as the Company Petition No.510 of 2013 is concerned, the respondent has already cleared all the liabilities of the petitioner in that matter. He submits that the company proceeding is not a recovery proceeding. 38. Learned counsel for the respondent invited my attention to the various allegations made in the affidavit in reply. He submits that all the JLF meetings were regularly attended by the petitioner and in view of the fact that the time for taking appropriate decisions by the JLF has not expired, no order can be passed by this Court in these company petitions at this stage. Learned counsel for the respondent placed reliance on the judgment of the Madras High Court in case of Karnatak Vegetable Oils Refineries Ltd. vs. Madras Industrial Investment Corporation Limited, XXIV Company Cases 249 (Madras) and on the relevant paragraphs on pages 251 to 253 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept various conditions imposed by the said investors. Be that as it may, it is now an admitted position that the said investors also vide its letter dated 7th March, 2017 has withdrawn the said NonBanking Expression of Interest dated 25th January, 2017 on the ground that the ONGC Limited had not granted any extension of delivery date for Rig Badrinath, which was one of the key condition in the offer made by the said investor. 49. Neither the respondent nor the intervenors could produce before this Court any other such proposal, if any, made by any of the investors. The submission made by the learned counsel for the respondent as well as the investors is that 180 days period available with the JLF had not expired and would expire only on 27th July, 2017. A perusal of the record clearly indicates that neither the promoters nor the investors are now agreeable to infuse any funds in the respondent for its revival. None of these parties have made any offer before this Court also though repeatedly asked to infuse any funds even at this stage. The ONGC Limited has already terminated the major contract awarded to the respondent. In these circumstances, I do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the JLF could not revive the respondent. These two petitions are pending in this Court since 2014. The respondent however, could not make any other proposal also for clearing the dues of these petitioners. In the facts and circumstances of this case and more particularly when there are no chances of revival of the respondent even remotely, in my view, the judgments relied upon by the respondent and the intervenors would not assist their case. Before the assets of the respondent are frittered away, the same are required to be protected by this Court in the interest of all the creditors, including the petitioners by passing appropriate orders including by appointing the Official Liquidator as a Provisional Liquidator. 52. Various judgment relied upon by Mr.Setalvad, learned senior counsel for the petitioner referred to aforesaid would clearly assist the case of the petitioner. In these circumstances, this Court cannot exercise any discretion in favour of the respondent or the intervenors and against the petitioner. Though both the petitioners are secured creditors, a perusal of the record indicates that the securities granted in favour of the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 55. It is held that if there no dispute as to the company's liability, it is difficult to hold that the company should be able to pay the debt merely by proving that it is able to pay the debts. If the debt is an undisputedly owing, then it should be paid. If the company refuses to pay, without good reason, it should not be able to avoid the statutory demand by proving, at the statutory demand stage, that it is solvent. 56. In the facts of this case, it is clearly beyond reasonable doubt that the respondent has not only admitted the liabilities of the petitioner, but is heavily indebted to large number of creditors. Inspite of several opportunities the respondent had for its revival, the respondent is not in a position to revive. In this situation, I am not inclined to accept the submission of the learned counsel for the respondent and the intervenors that these petitions are filed with a view to pressurize the respondent company and are not bonafide. In my view, the principles of law laid down by this Court and the Supreme Court in the above referred judgments squarely apply to the facts of this case. I am respectfully bound by the said judgments. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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