TaxTMI 
TaxTMI 
2010 (3) TMI 1180
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....February, 2010 1,13,22,276.00 1047 of 2009 24th February,2010 1,97,05,807.00 Total Amount in words: Rupees Forty one crores eighty nine lacs fifty five thousand five hundred fifty nine and nineteen paise only.) 41,89,55,559.19 In addition to the above petitions, there are other claimants who have come forward with their claims pursuant to the advertisement issued in Company Petition No. 477 of 2009, which includes a claim from M/s Kotak Mahindra Bank to the tune of Rs. 18 crores. There are also few Company Petitions filed by the Creditors of the Company which are pending admission before this Court. 3. As set out hereinafter, according to the Respondent Company its Net Current Assets are to the tune of Rs. 200 crores and the fixed assets (as per books) is around 76 crores. The liabilities of the Respondent Company are as under: Secured Creditors Rs. 200 crores Unsecured Creditors Rs. 200 crores There is not a single asset of the Company which is not charged to any creditor. The executive staff of the Company is not paid from the last 12 months. The employers contribution towards the statutory dues/payments of the workmen ....
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....that the Respondent Company shall not dispose of any of their movable assets except in the ordinary course of business and shall not dispose of any of their immovable assets without the permission of this Court. 6. No affidavit in reply is filed after the petition was admitted. Today no submissions on merits of the petition are advanced. An affidavit termed as "additional affidavit" dated 19th March, 2010 is today tendered in Court. In the said affidavit, the petition is not opposed on merits. It is contended in the said affidavit that the Company has gone through a difficult phase due to the terrorist attack in Mumbai on November 26, 2008, leading to steep fall in tourism and consequently consumption of wine; Sudden changes in the regulatory regime i.e. changes in labeling and marking on the bottles leading to stocks lying blocked; Changes in state excise structure in Karnataka and Goa with retrospective effect and; other factors. Admittedly, except for the contention that there was recession in the business, none of the above circumstances have figured in the Affidavit in reply to the Company Petition. It is further stated in the "additional affidavit" that there was a proposa....
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....e only intention is to protect the interest of the secured creditors and before whom the unsecured creditors are last in priority. 9. In the instant case, admittedly, the Monitoring Committee under the CDR Mechanism comprises of ICICI Bank Ltd., State Bank of India and IDBI Bank. No unsecured creditor is on this Monitoring Committee. Admittedly, no notice was given to the unsecured creditors of the meeting held on 18th December, 2009 nor are the unsecured creditors invited for the meeting to be held on 29th March, 2010. The CDR scheme is admittedly a voluntary scheme and not binding on the unsecured creditors of the Company. The unsecured creditors are always at liberty to remain out of the scheme and pursue the winding up proceedings. 10. As far as the creditors of a Company are concerned, the provisions pertaining to the winding up proceedings under the Companies Act are more particularly meant for protecting the interest of the unsecured creditors of the Company who are the worst affected lot when a Company becomes commercially insolvent. The secured creditors of a Company can always pursue their claim by keeping themselves out of the winding up proceedings. The Court cann....
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....ts of the Company. The submission therefore, made in the "additional affidavit" "that the Respondent is commercially solvent", is an incorrect submission made on oath by the managing director of the Company suppressing the figures pertaining to the liabilities of the Respondent Company. 13. In response to a query raised by this Court, the learned Advocate appearing for the Respondent Company also informed the Court that the Respondent Company has not paid the statutory contributions required to be paid by the Company for the benefit of its workers and has also not paid its executive staff since the last 12 months. All these facts are suppressed in the the "additional affidavit" and in fact as stated above, incorrect statements are made on oath and also across the bar. It appears that it is for this reason, the so called "business plan" prepared by the Respondent Company is also not forthcoming before this Court and the said "additional affidavit" is filed only for the purpose of taking an adjournment on the ground that the "CDR Cell" is in the process of preparing a financial restructuring package for the Respondent Company. 14. In view of the above facts, I am of the view th....