TaxTMI 
TaxTMI 
TaxTMI 
2013 (8) TMI 724
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....49,22,89,203 along with interest @ 4% p.a. over and above the applicable rate of interest. A legal notice dated 29th June 2012 was issued by ANZ, followed by reminders on 13th and 24th July 2012. 3. It is stated that on or around 26th July 2012, ANZ received a proposal from TTL setting out a repayment schedule agreeing to pay Rs. 50,00,00,000 and in addition, a sum of Rs. 2,50,00,000 towards interest in four instalments, beginning 7th August 2012 and ending 7th November 2012.ANZ, in response, offered a revised repayment schedule which was agreed to by TTL by a letter dated 1st August 2012. TTL also issued post dated cheques ('PDCs') and furnished a personal guarantee dated 31st July 2012 issued and executed by its Managing Director ('MD') Lt. Col. Hardeep Singh Bedi (hereinafter referred to as 'Lt. Col. Bedi'). A request was made by TTL to ANZ to defer depositing PDCs by ten days but the said request was declined. When ANZ presented the first PDC in the sum of Rs. 12,50,00,000 on 7th August 2012 for payment, it was dishonoured. Thereafter, the winding up petition was filed. 4. At the first hearing of the petition on 31st August 2012, Mr. G.L. Rawal, learned Senior counsel along w....
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.... is also on record detailing the liabilities of the respondent qua other persons. In view of the aforenoted circumstances which have now emanated it would be expedient that the respondent is restrained from transferring, alienating or dissipating his assets immovable and moveable except in the normal course of business till further orders. Renotify for directions for 19.9.2012." 6. On 19th September 2012, the Court noted that a sum of Rs.8,00,00,000 had been paid to learned counsel for ANZ by way of a demand draft. The Court directed that "the payment schedule as contained in the earlier order of this Court be adhered to." On 12th October 2012, the following order was passed in CA No. 1961 of 2012: "Learned counsel for the petitioner points out that the sum of Rs.2crores which had to be paid by 25.9.2012 has not been paid. Payment schedule has also not been furnished. Learned counsel for the respondent undertakes (on behalf of his client) that he shall pay this amount of Rs. 2 crores within 10 days from today and the payment schedule shall also be furnished within 10 days. Reply be also filed within 10 days. For compliance; renotify for 02.11.2012." 7. On 2nd November 2012, ....
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....res per month; the first installment of Rs. 3 crores shall be paid by the respondent to the petitioner on or before 30.11.2012; second installment shall be paid on or before 31.12.2012 and so on; the last installment will be in the sum of Rs. 3.50 crores along with interest at the agreed rate on the reducing balance and as noted supra this complete payment shall be made by 31.12.2013. An affidavit to the said effect of the Director of the Company shall be filed within one week from today detailing the schedule of these payments; in case of even one single default the petitioner shall be at liberty to take appropriate action under the contempt law; in such an eventuality, the provisional liquidator shall also stand appointed. Both the parties agreed that this order shall not be communicated or used in the Media or Press by either party. This order may not also be uploaded on the net. With these directions, this petition as also the pending applications stand disposed of." 9. An affidavit dated 5th December 2012 was filed by Lt. Col. Bedi in terms of the above order dated 21st November 2012 detailing the schedule of paymentsas agreed between the parties. Subsequently, an applicat....
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....y31.01.2013. The grievance of the appellant herein is that the learned Company Judge while recording the settlement has observed that in case there is a default of even one single instalment, the respondent would be at liberty to take appropriate action under the contempt law and in such an eventuality the provisional liquidator should also be appointed. We notice that interests of the appellant have also been protected by observing that the order passed by the Court would not be communicated or used in the Media or Press by either party or uploaded on the net. We do not think there is any need for this Court to interfere with the impugned order as it is based upon the settlement arrived at between the parties. In case the appellant requires any clarification or modification for any reason including the said term/condition was not agreed or accepted, they can approach the Company Court for the said clarification/modification. Keeping in view the nature of the order, we are not inclined to issue notice. The appeal is disposed of accordingly. Pending application also stands disposed of. Dasti." 11. Following the above order of the DB, ANZ filed CA No. 455 of 2013 seeking revival....
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....titioner would be at liberty to take appropriate action under the contempt law, and "in such an eventuality the provisional liquidator shall also stand appointed". 5. Mr. Rawal submitted that the order appointing the provisional liquidator should not be passed today and that the Respondent should be given an opportunity of placing on record certain documents concerning a corporate debt restructuring ('CDR') Scheme that has been arrived at with the secured creditors. He, however, is candid that the said CDR Scheme does not deal with the liability owing to the Petitioner. In the circumstances, the Court finds no justifiable reason for the Respondent not filing a reply to the contempt petition till date. 6. The Court has been shown a copy of order dated 28th January 2013 of the Division Bench in Company Appeal No. 5 of 2013 which was filed by the Respondent against the order dated 21st November 2012. While dismissing the said appeal the Division Bench gave liberty to the Respondent to apply to this Court for clarification or modification of the order dated 21st November 2012. Till date the Respondent has not filed such an application for modification or clarification of the said ord....
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....ank, Punjab National Bank, Axis Bank Limited, IDBI Bank, Canara Bank, Bank of Baroda, Dena Bank, Central Bank of India, Andhra Bank, LIC of India and others. It was stated that TTL's failure to make payment to ANZ in terms of the settlement entered into between the parties as recorded in the order dated 21st November 2012 was not intentional and was beyond the control of TTL. It was added that even the payment of salaries of the employees of TTL has been delayed. It was stated in para 13 of the affidavit that the valuation by an independent valuer of the assets of TTL was undertaken at the instance of the secured lenders, of which the leading was ICICI bank ('ICICI'). The valuation exercise so undertaken placed the value of the assets of TTL as Rs. 4,426.19 crores, whereas the liabilities owing towards CDR and other lenders, inclusive of ANZ, worked out to Rs. 3067.63 crores. On this basis, it was stated that the money owing to ANZ constituted 1.44% of the sum owing to other lenders. It is stated that "now in terms of CDR no preferential payment can be made as such in these circumstances respondent hands are tied as the survival of the respondent on the strength of CDR." In para 17....
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....t. In para (x) of the said letter, it is stated as under: "(x) The company has to ensure that all non-CDR lenders including FCCB are to be restructured as stipulated in final scheme. The company to provide undertaking for the same." 17. Enclosed with the letter is the CDR Scheme that has been approved. Sub-para VI of para 1.5, which is relevant for the present purpose, reads as under: "VI. TTL should open a Current Account with the MI, to be designated pre-TRA account and all transactions to be routed through this account. Company should submit cash budget for 3 months. "Holding-on-operations" shall be allowed in the Pre TRA account by the lenders till implementation of the package." 18. In para 4.4 titled "Unsecured loans, lessors etc." the CDR Scheme notes that, as on 30th September 2012, a sum of Rs. 42 crores is due to ANZ. The said para notes in a foot note that "TTL has paid Rs.15 Crore to ANZ under a court order. The balance amount is proposed to be restructured in line with other TL lenders." 19. Considering that Lt. Col. Bedi has in his affidavit stated that TTL had applied for the CDR on 31st December 2012, more than a month after the order dated 21st November 2012 w....
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....uage of the order dated 21st November 2012, TTL did not seek directions from this Court when it became plain to it that it would be unable to adhere to the undertaking given to the Court in the event that the CDR Scheme was approved. On the contrary, it is pointed by ANZ that part-payments were made of the January 2013 instalment by TTL in February 2013. Also, Lt. Col. Bedi was unable to produce any document whereby any of the other secured lenders of TTL had expressly prohibited TTL from making the payment to ANZ. 23. The reasons stated in the affidavits filed by Lt. Col. Bedi by way of explanation as to why TTL was unable to adhere to the undertaking given by it to the Court, as recorded in the order dated 21st November 2012, are neither satisfactory nor convincing. The said order was affirmed by the DB on 28th January 2013. As already noted, despite the DB giving TTL liberty to apply to the Court for modification of the order dated 21st November 2012, including the condition regarding appointment of the PL, TTL filed no such application. It is only in the affidavit tendered in Court that TTL has made a prayer for modification of the order but without indicating what modificatio....
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.... that statement since there is nothing in the CDR Scheme to suggest that creation of a pari passu charge in favour of an unsecured lender is permissible. 28. From the affidavits tendered in Court it is clear to the Court that as of now, TTL is not in a position to repay the outstanding amounts which it owes ANZ. A case for passing orders under Section 433(e) and (f) read with Sections 434 and 439 of the Act is made out. While it is possible that the CDR Scheme grants a moratorium to TTL on repayments of loans of the secured lenders, the payment of the dues owing to TTL is entirely governed by the order dated 21st November 2012 (as corrected by the order dated 17th December 2012) which has not been varied till date and, having attained finality, is binding on TTL. The CDR Scheme approved by the lenders does not deal with this aspect at all except requiring TTL to restructure the liability. TTL has not taken the first step in that direction. Only in response to the notice issued to it in the contempt petition, and after two adjournments it has come up with a vague prayer for modification of the order dated 21st November 2012. Again, TTL has not been able to explain how it proposes t....
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....ake over all the assets, books of accounts and records of TTL forthwith. The OL shall also prepare a complete inventory of all the assets of TTL before sealing the premises in which they are kept. He may also seek the assistance of a valuer to value the assets. He is permitted to take the assistance of the local police authorities, if required. (iv) Publication of the citation of the petition be effected in the Official Gazette, 'The Statesman' (English) and 'Veer Arjun' (Hindi) in terms of Rule 24 of the Companies (Court) Rules, 1959 ('Rules'). The cost of publication shall be borne by ANZ. (v) The Directors of TTL are directed to strictly comply with the requirements of Section 454 of the Act and Rule 130 of the Rules and furnish to the OL a statement of affairs in the prescribed form verified by an affidavit within a period of 21 days from when this order becomes operational. They will also file affidavits in this Court, with advance copies to the OL, within four weeks setting out the details of all the assets, both movable and immovable, of TTL and enclose therewith the balance sheets, profit and loss accounts and copies of the statements of all the bank accounts for the last....