TMI Blog2016 (11) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... Want of certificate by an authorized officer of the respondent Bank, in accordance with the terms of corporate guarantee, the certificate referred to in clause 15, is said to be a conclusive proof of the dues. It could be one of the modes of conclusive evidence against the guarantors. However, there could be other evidence of such conclusive evidence of the dues. In other words, it could be proved by other means of evidence. If there is convincing material on record with regard to the dues of the creditor against whom winding up is sought, it is immaterial whether a certificate of the nature was produced or not. When a statutory notice before lodging Company Petition seeking winding up of the appellant's Company was filed by the respondent Bank, they had made it clear that the respondent bank's debt was over 22 crores, therefore, cannot be said to be disputed with bonafides on the part of the appellant. There is nothing on record to show that in the Company Petition, the respondent Bank has not correctly disclosed the position of the debt as on the date of the petition. Appeal dismissed. - Appeal (L) No. 911 of 2015, Company Petition No. 317 of 2012 - - - Dated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to them, in the light of the above fact, there is no privity of contract between the respondent Bank in carrying on business at its registered office or its corporate office at Mumbai and the appellant Company. 4. The second contention was with regard to insufficiency of stamp duty so far as the document of Corporate Guarantee. Therefore, it cannot be received in evidence or acted upon in a Company Petition. The third contention was that there is no certificate issued by any authorized officer of the respondent Bank in respect of its claim in the petition which was a requirement of the Corporate Guarantee Agreement. Apart from these three contentions, they also alleged that no deductions or reference is made to several payments made by the principal borrower to the respondent Bank in discharge of the guaranteed debt. 5. Several arguments were addressed on behalf of both the parties. Ultimately, learned Judge after referring to the decisions relied upon by the appellant Company in the cases of Agenda Commercial International Ltd. v. Custodian of the Branches of Banco Nacional Ultramarino, (1982) 2 SCC 482 and Chainrup Sampatram v. Punjab and Sing Bank, 2008 Indian CAL 766, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments, in accordance with the laws applicable in the State within the stipulated period. If that stamp duty is not paid, according to the appellant, the document cannot be admitted in evidence, and cannot be acted upon. We fail to understand this stand of the appellant in the present Appeal, since we are not concerned with the insufficiency of stamp duty payable on documents of corporate guarantee, but we are concerned with the issue whether the appellant Company deserves to be wound up or not. The Company Court definitely is not required to act upon any particular document while considering whether or not to wind up a Company. It necessarily considers whether the Company is unable to pay its debts. Section 434 is a deeming provision wherein it says that if a creditor to whom the Company is indebted in a sum exceeding the statutory limit, has served upon the Company a demand requiring it to pay the sum so due, and the Company has thereafter neglected to pay the sum or secure the same to the reasonable satisfaction of the creditor, the deeming provision comes into play and the Company is deemed to be unable to pay its debts. 9. In the present case, the Company raises a defence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such have been provided to me). 12. There is another letter addressed by the appellant dated 17 May 2010 a year later, reiterating the position which reads as under: In consideration of your having agreed to enter into the Supplementary Facility Letter with the Borrower, we hereby agree, confirm and undertake that (i) the Guarantee continues to subsist and remains valid and binding on us for all the obligations of the Borrower under the Supplementary Facility Letter, Facility Letter and General Commercial Agreement; (ii) we shall do all such acts, deeds and things and execute such deeds, documents and writings as shall be required by you from us in connection with the Facilities. 13. Apart from these two correspondence, respondent relied upon another document known as Amendatory Facility letter signed by the principal borrower in favour of respondent bank on 9 December 2010. This contains an acceptance endorsed by the appellant herein as a guarantor according to the Amendatory Facility letter. Apart from this, the appellant has also admitted the liability in its balance sheet on 31st March 2011. Apparently, this seems to be a contingent liability in the sense, liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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