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TMI Blog2015 (8) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... e to Access Atlantech Edutainment (India) Limited, changed its name to AAT Academy India Limited and consequent to the change of name, fresh certificate of incorporation was issued as per Annexure No. 1. The main object of the respondent company is to provide generalised and specialised education and training in the field of computers, software, applications, systems analysis and design, software engineering, audio engineering, video engineering, multimedia work, work-based learning, and to design, develop, market and export all kinds of software application, services and products in areas like graphics, communications, operating systems, man machine interface database, expert system, Computer Aided Designs, Computer Aided Manufacturing, Computer aided Software Engineering, internet and e commerce activities, etc. 3.1. According to the petitioner, when the Promoter Director and CEO of the respondent Company [for short, "Borrower"] approached her for loan for the expansion of business, she provided a sum of Rs. 37,50,000/- under a promissory note dated 15th April, 2010, which is shown as Annexure No. 4 and the Managing Director of the respondent company, in turn, executed a Guarant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the dues of Rs. 28,65,014/- along with interest @ 24% within 21 days of the receipt of the notice. According to the petitioner, the respondent company is in an extremely precarious and unstable financial position and its liability exceeds its assets. The company does not possess the requisite funds to meet the financial obligations and also to make payments towards the admitted contractual commitments. With these averments, the petitioner has filed the petition for winding up of the respondent-company. 4.1. The petition for winding up was resisted by the respondent. It is stated that when the respondent was on the look out for funds for expansion and was seeking investment from various investors, Mr. Rathish Babu, Managing Director of the respondent Company was introduced to one Vivek Suchanti, founder of Concept Communications Limited, who, in turn, introduced him to Bela Desai, (hereinafter called "Bela") and Sanjay Chainani (referred as, 'Sanjay"). According to the respondent, Bela and Sanjay, who are promoters of Greycells, also carry on business in a company called Value Line Advisory Pvt. Ltd. 4.2. It is also the case of the respondent that Concept Group has significant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent and perused the records. 6. The main contention of the learned counsel for the petitioner is that right from the beginning of the transaction, both the borrower and the respondent had dishonest intentions to defraud the petitioner and at a later point of time, since they were unable to pay the dues, they have become inaccessible. He further submitted that the liability of the respondent company as guarantor is coextensive with that of the borrower, who is also the Director and CEO of the respondent company. It is also the contention of the learned counsel for the petitioner that the respondent had not replied for the statutory notice dated 25.03.2013. According to him, if the company is allowed to carry on business, unsecured creditors like the petitioner will be put to great hardship and inconvenience. 7. On the contrary, the main contentions of the respondent - Company in defence are:- (a) The very claim of the petitioner is fraudulent and the same is challenged by the respondent by way of civil suit, which is pending; (b) The petitioner, being wife of claimant Director of Greycells had trapped the respondent and made him to part with the 1,00,000 shares of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransfer of shares by deeds. This is also confirmed by the mail dated 12.10.2011, wherein, the petitioner has communicated that she would sell the shares which was held by her as security and appropriate the sale proceeds towards repayment of the principal loan. 12. The respondent also contended that the pledge of shares is barred by the provisions of Section 295 of Companies Act and hence, the sale of the same is also a violation under Section 295 of Companies Act. Therefore, according to the learned counsel, there is no pledge as alleged by the petitioner-company. 13. In the above factual matrix, the alleged "Inability to pay its debts" by the respondent has to be considered and examined taking into various aspects. It is settled principle that winding-up is not a matter of right but it is the discretion of Court on any one of the grounds mentioned in Section 433 of the Companies Act. Though the statutory notice raised the presumption as to the inability to pay its debts, it is rebuttable. Admittedly, in this case, the company is only a guarantor for the loan borrowed by the Director without any resolution of the Board. Therefore, the question would be whether the Court can pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent-company is going concern indulging in providing education in specialized fields of studies and it is also commercially solvent. Admittedly, the respondent-company has not become defunct or closed. The business of the company is only providing educational services employing more than 60 persons. In such circumstances, winding-up of the same at the instance of the Petitioning- Creditor would deprive the employment of the persons with the respondent organization, resulting in great prejudice and serious hardship to them. The respondent-company being only a guarantor, in the absence of resolution to sell the shares of the company or even act as a guarantor without a resolution, the alleged transactions by the Petitioning-Company are subject matter of proof and evidence. While so, ordering winding-up would be like pressurizing the respondent to pay the money. Even presuming that there is a dispute with the respective debt payable, in the given circumstances, the dispute can be resolved only before the Civil Court and not through the company Court.
In the result, the Company Petition filed as such is not maintainable and hence, the same is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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