TaxTMI 
TaxTMI 
2015 (12) TMI 1134
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....cancelled the credit facility with immediate effect calling upon the borrower to make payment of USD 5.15 millions towards the dues outstanding as on 3 January 2012. On 6 February 2012, the Petitioner invoked the corporate guarantee calling upon the Respondent company to pay a sum of USD about 5.20 millions as on 6 February 2012. Upon non-payment of the amount under the corporate guarantee, by its statutory demand notice issued under Section 433 and 434 of the Act, on 16 February 2012, the Petitioner called upon the Respondent to pay a sum of about USD 5.21 millions equivalent to about Rs. 21.71 crores as on 14 February 2012. There is neither compliance with nor reply to the statutory notice on the part of the Respondent. The Petitioner has, in the premises, approached this Court seeking winding up of the Respondent company. 3 The Respondent has in its reply to the Petition raised various defences, but at the hearing only three defences were urged by learned Counsel for the Respondent. Firstly, it is submitted that the contract of corporate guarantee was executed by the Respondent with the branch of the Petitioner bank at Hong Kong. It is submitted that for the purpose of banking ....
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....ernational Ltd. contains peculiar facts. Originally, Banco Nacional Ultramarino (the National Overseas Bank) with its Head Office at Lisbon in Portugal had branches in Goa before the territories of Goa, Daman & Diu were liberated from the Portuguese rule and integrated with India. On the eve of the transfer of power, Banco Nacional Ultramarino closed its branches in Goa and moved a substantial portion of valuable assets held there to its Head Office at Lisbon and other places overseas. The closure of the branches of Banco Nacional Ultramarino at Goa gave rise to a considerable confusion. It was necessary to take measures for exchange of over nine crore rupees worth of Portuguese currency and likewise to provide for payment of monies and return of valuables deposited with the now closed branches. (As Banco National Ultramarino had closed its branches, no one could operate on them.) To relieve the confusion and distress, the President of India promulgated the Goa, Daman & Diu (Banks Reconstruction) Regulation, 1962. The Regulation provided that on and from the appointed date, the branches would be reconstructed in the interest of general public in accordance with the provisions of th....
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....yment were made in this account maintained by the branch; and that the appellants hypothecated their goods in favour of the branch. In short, what was found was that though the Head Office authorized the branch to execute documents, the transactions for all purposes were actually controlled and worked out by the branch. On these findings of fact, the Supreme Court essentially held that considering the fact that branches were regarded for many purposes as separate and distinct identities from the Head Office and from each other in relation to banking law and practice and that apparently in that light the Regulation had been framed, the Regulation was intended to achieve certain purposes, namely, to dispose of the pending business of the branches and discharge of existing liabilities and recovery of existing debts and assets with a view to the ultimate winding up of the bank. The Supreme Court held that the particular provisions of the Regulation clearly proceed on the basis that the branches must be regarded as entering into and carrying out transactions identifiable as theirs. The Regulation treated these transactions as distinct from those carried on by the Head Office. Accordingl....
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....egistered office at Vadodara and its corporate office at Mumbai acting through its Hong Kong branch. The promisee, in the present case, accordingly, was not the branch but ICICI Bank Ltd. having its registered office at Vadodara, its corporate office at Mumbai and acting through its Hong Kong branch. This puts the matter beyond the pale of any controversy, since even if the transaction was actually executed through or with the Hong Kong branch, that branch itself was merely acting as an agent of ICICI Bank with its registered office in Vadodara and corporate office in Mumbai. So much for the first defence of the Respondent. 7 The second defence concerns inadequacy of stamp duty payable on the document of corporate guarantee. The corporate guarantee was executed in the State of Gujrat and is stamped with a stamp duty of Rs. 100/- in accordance with the residuary clause, namely, Clause (j) of Article 5 of Schedule-I to the Bombay Stamp Act as applicable in Gujrat. There is no controversy that this is an adequate stamp duty payable on the instrument in the State of Gujrat where it was executed. What is, however, submitted is that when this document comes into the State of Maharashtra....
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....ificate in writing signed by a duly authorized officer of ICICI Bank shall be conclusive evidence against the guarantors of the amount for the time being due. In other words, a certificate referred to in Clause 15 is stated to be a conclusive evidence of the dues. But it is not the only evidence of such dues. The dues may be proved by means of other evidence as well. If there is overwhelming evidence available on the record concerning the dues of the Petitioner, it is immaterial that a document termed as conclusive evidence is not produced before the Court. So much for the third and last defence of the Respondent. 9 In sum, there is no defence at all to the liability owed by the Respondent to the Petitioner. The Respondent has not only executed a Corporate Guarantee but has also addressed a letter of 22 April 2009 to the Petitioner submitting an undertaking as follows: "4. In consideration of your having agreed to enter into the 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 an....