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TMI Blog2014 (9) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... smissed on the ground that the power deed executed by the trustee is insufficiently stamped and the trustee has not produced the authorisation as required under Clause 10 of the Trust deed dated 27.12.2007 from the Bondholders of atleast one quarter in principal amount of the Bond read with condition No.17 of the Bonds. Challenging the said order passed, the present appeal has been filed. Facts in brief:- 2. The appellant is a Company incorporated under the Laws of England , being engaged in the business of providing corporate trustee services. The appellant is a creditor of the respondent Company on behalf of the Bond holders for a sum of USD 64036036.29 under the Bonds along with the accrued interest apart from default interest. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken the said document into consideration. The memo has also been served on the respondent. Even otherwise as per the avements made in the Company Petition, the trustee is entitled to take action as per the Trust deed dated 27.12.2007 and the offering Circular dated 20.12.2007 If the power deed is insufficiently stamped as it was executed abroad, the only recourse that can be adopted is to order impounding of the said document by directing the appellant to pay the deficit stamp duty. Even the said issue has paled into insignificance in view of the subsequent one obtained. There is no dispute about the executant of the power deed. The respondent has not given any reply to the notice issued and therefore the learned single judge ought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Clause 10, we deem it appropriate to reproduce the same for better appreciation: ''10. ACTION, PROCEEDINGS AND INDEMNIFICATION 10.1 The Trustee shall not be bound to take any action in relation to these presents (including but not limited to the giving of any notice pursuant to Condition 19.6 or the taking of any proceeding and/or other steps mentioned in subclause 9.1) unless respectively directed or requested to do so (a) by an Extraordinary Resolution or (b) in writing by the holders of at least one-quarter in principal amount of the Bonds then outstanding and in either case then only if it shall be indemnified and/or secured to its satisfaction against all Liabilities to which it may render itself liable or which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant has raised a specific plea in the Company Petition that it has been filed both on behalf of the Bondholders as well as in its capacity as a trustee, as there was a breach of covenants and obligations under the Trust deed on the part of the respondents. Furthermore, the authorisation has also been produced. The respondent has not questioned the validity or genuineness of the said authorisation. Therefore, we are of the considered view that the learned single Judge was not right in rejecting the application on the ground that there was no valid authorisation. There is also no dispute that the memo has been filed after duly serving the respondents. Considering the similar issue, it has been held by the Division Bench of the Bomba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entitled to proceed directly against the Company. Upon the bonds becoming due and payable, it was for the trustee, namely, the Respondent, to adopt proceedings against the Company to enforce repayment of the bonds together with the premium, if any, and to enforce the provisions of the Deed of Trust. Clause 24 also stipulates that the respondent is not bound to take such proceedings unless it has been so requested by the holders of not less than twenty five per cent of the principal amount of the bonds then outstanding. An individual holder is not entitled to move a proceeding against the Appellant unless the trustee having become bound fails to adopt necessary steps for a stipulated period. 6. Clause 24 of the Deed of Trust does not prec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, we are of the view that the order passed by the learned single Judge dismissing the petition on the ground of insufficiently stamped power deed is also liable to be set aside and accordingly the same is set aside. 8. Coming to the merits of the case, the learned Senior Counsel for the appellant submitted that the liability is not questioned, no reply has been given on merit by the respondent to the notice issued by the appellant and the Company Petition has also ought to have been admitted against the respondent and therefore this Court will have to admit the Company Petition after setting aside the order passed by the learned single Judge. Per contra, learned counsel for respondent submitted that even in the grounds a specific plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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