TaxTMI 
TaxTMI 
2017 (2) TMI 703
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....inst the respondent. The Company Application No.470 of 2016 is filed by the IDBI Bank Limited seeking its impleadment as a party respondent in Company Petition No.570 of 2016 and in the Company Application No.455 of 2016. 2. On 25th January, 2016, the petitioner sanctioned various facilities / financial assistance in favour of the respondent not exceeding an aggregate amount of Rs. 200.00 crores. On 28th January, 2016, the petitioner and the respondent executed Master Facility Agreement. It was provided in the said agreement that the petitioner had sanctioned secured over all limits of Rs. 200.00 crores consisting of Fund based limits of Rs. 25.00 crores and Non-fund based limits of Rs. 200.00 crores. On 28th January, 2016, the respondent executed an Unattested Deed of Hypothecation in favour of the petitioner thereby hypothecating only those Current Assets and Receivables created out of the financial assistance provided by the petitioner under any of the facilities contemplated under the said Master Facility Agreement. 3. on 8th February, 2016, the petitioner disbursed a sum of Rs. 20.00 crores under the said Master Facility Agreement. The petitioner issued various letters o....
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....volatility. It is the case of the petitioner that by the said letter, the respondent however, did not deny its liability to pay to the petitioner. 9. On 18th May, 2016, the petitioner replied to the said letter dated 16th May, 2016 and placed on record that since the respondent had committed default in repayment, an 'Event of Default' as contemplated in clause 12 of the Master Facility Agreement had occurred in view of the continuous defaults alleged to have been committed by the respondent and thus the petitioner was constrained to cancel all unutilized limits under the said agreement. The petitioner called upon the respondent to clear all outstanding liability and to furnish cash collateral for the balance letters of credit. There was no response to the said letter from the respondent. 10. On 19th May, 2016, the petitioner issued a statutory notice for winding up under section 433 and 434 of the Companies Act, 1956 to the respondent. 11. It is the case of the petitioner that on 20th May, 2016, the letter of credit for US $ 2,634,863.51 became due and payable by the respondent to the petitioner. On 20th May, 2016, the petitioner vide its letter sent a reminder to ....
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....80 became due and payable by the respondent to the petitioner. On 28th June, 2016, the petitioner sent a reminder to the respondent for payment of the alleged outstanding dues. 16. On 8th July, 2016, the petitioner filed a company petition inter-alia praying for winding up of the respondent company. The petitioner also filed a separate company application inter-alia praying for the appointment of the Official Liquidator. The petitioner also filed an additional affidavit before this Court placing certain additional information on record. The respondent has filed a detailed affidavit in reply. The petitioner has filed rejoinder to the affidavit filed by the respondent. 17. Mr.Kadam, learned senior counsel appearing for the petitioner invited my attention to the various documents annexed to the company petition, including the correspondence exchanged between the parties and also to the averments made in the Company Application No.445 of 2016 and more particularly in paragraph 7. He submits that the respondent has sold its stake to another company i.e. Ruchi Kagome Foods India Private Limited. Reliance is also placed on press release dated 22nd May, 2016 in support of the submiss....
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....greement and also Inter Creditor Agreement (ICA) and Debtor Creditor Agreement (DCA), the provisions made in the said circular are not binding upon the petitioner. He submits that the respondent is not declared as willful defaulter in view of the order passed by this Court in the company petition in favour of the respondent. He submits that none of the options available under the said circular, including (i) Corrective Action Plan, (ii) Restructuring and (iii) Recovery, are binding on the petitioner including the decisions, if any, taken by the said Joint Lender's Forum. He submits that the petitioner is entitled to pursue the remedy available to it in law including winding up of the respondent company on the ground that the respondent is unable to pay its debts. 22. Learned senior counsel for the petitioner also led emphasis on clauses 3.2 to 3.4 of the said circular and would submit that if the lenders would have proceeded with restructuring of the account, such decision would have been binding on the lenders only if minimum of 75% of the creditors by value and 60% of the creditors by number in the said Joint Lender's Forum would have signed Inter Creditors Agreement a....
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....e submits that clauses 5 and 6 of the said circular have to be read together. 26. It is submitted that no lender can be forced by the Reserve Bank of India to waive its right to recover the amounts due to the lender from the borrower or can be directed to provide any further facilities to the borrower. The emphasis is also led on clause 6.2(ii) of the said circular in support of the submission that the said penal provision also could be attracted only in case of violation of the decisions taken by the JLF provided the lenders would have been the signatories to the said two agreement and those lenders would have changed their stand later or would have refused to implement the package. 27. Mr.Kadam, learned senior counsel for the petitioner placed reliance on various submissions made in the additional affidavit dated 31st August, 2016 and submits that 8 out of 11 Crushing plant of the respondent are already closed. He submits that the mark to market loss of the respondent is about Rs. 522.00 crores. The total debts of the respondent company are more than Rs. 9451.80 crores. The respondent has admitted its outstanding liability to the petitioner at least to the extent of Rs. 192....
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....1st July, 2014 and more particularly clause 22.1(c), it is clearly provided that if first two options provided at (a) and (b) of clause 19.1 are not feasible, due legal process may be resorted to. He submits that as on today admittedly no reconstructing process of the respondent is formulated and finalized. Learned counsel distinguished the judgment of the Court in case of Tata Capital Financial Services Limited vs. Infraprojects Limited, (2015) SCC Online Bom. 3597. My attention is also invited on paragraphs 15, 16, 19 and 20 of the said judgment. He also placed reliance on the judgment of this Court in case of BNY Corporate Trustee Services Ltd. vs. Wockhardt Limited, (2014) 187 Company Cases 301 (Bom.) and the judgment of the Supreme Court in case of IBA Health (India) Private Limited vs. Drive Systems SDN Board, (2010) 10 SCC 553. He submits that even if SDR scheme as canvassed by the said JLF is pending, the company petition for winding up can still be admitted since the conditions of winding up of the company are satisfied. 32. Mr. Kadam, learned senior counsel for the petitioner placed reliance on the judgment of this Court in the case of BNY Corporate Trustee Services Lt....
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....ntion Account-2 and in that event, it is mandatory that a Joint Lenders Forum (JLF) is formed comprising of all the lenders. 35. It is submitted that such JLF has to exercise one of the options prescribed under the Circular dated 26th February 2014 and various other Circulars i.e. dated 1st July 2014, 24th September 2015 and 25th February 2016 and 13th June 2016. He submits that once the corrective action plan is accepted by 75% of the lenders in value and 50% in number, such decision is binding on all the lenders including the petitioner. It is submitted that if any lender including the petitioner does not wish to be a part of such a scheme, it is bound to sell its exposure to another lender. He submits that it is not open to the dissenting lender to continue with its existing exposure and simultaneously not agree for rectification or restructuring as part of the corrective action plan. He submits that various circulars referred to and relied upon by the respondent in the affidavit-in-reply which are also referred to by the petitioner are binding on all the banks including the petitioner. 36. Learned senior counsel for the respondent placed reliance on the judgment of the Su....
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....he JLF, all the lenders have to sign the Inter Creditor Agreement and also the Debtor Creditor Agreement as contemplated under clause 3.1(b) which has to be read with clause 3.2 of the said circular. 39. It is submitted by the learned senior counsel that in the event of any of the lenders who had agreed to the restructuring decision by the JLF but changes their stance later on or delays/refuses to implement the package, such lender will be subject to accelerate provisioning requirement on their exposure to the borrower if the account of the borrower is classified as Non- Performing Assets (NPA). He submits that under clauses 7.1 to 7.4 of the said circular, the punitive action is provided against such lenders who change their stance and refuses to implement the package or causes delay. He submits that since the said provision contemplates for punitive action, it presupposes that other provisions provided therein are binding and are mandatory in nature. He submits that the said provision would be binding even upon the lenders who are not members of consortium. 40. Learned senior counsel for the respondent placed reliance on clauses 5.2 and 6.2 of the Circular dated 24th Septem....
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.... shareholders and has received several awards and accolades. The respondent was ranked No.1 firm as per total income in financial year 2015 in the food produce sector by Dun and Bradstreet. The respondent has been featured in the list of World's top 250 Consumer Produce Companies prepared by Deloitte. The respondent has remitted an aggregate amount of Rs. 14,89,00,000/- towards its direct tax liability for the Financial Year 2014-2015 and has paid an aggregate amount of Rs. 7,32,59,95,204/- as and by way of indirect tax liability for the Financial Year 2015- 2016. The gross value of the fixed assets of the respondent is Rs. 4,019.97 crore as on 31st March 2016. He submits that the respondent-company employs 8325 persons and has paid all its employees their wages. The total wages paid in the Financial Year 2015-2016 aggregates to Rs. 2,11,37,00,000/-. 44. It is submitted by the learned senior counsel for the respondent that in so far as the order passed by the Security Exchange Board of India which has been relied upon by the learned senior counsel for the petitioner is concerned, the said order was passed ex-parte. He submits that by the said order, a show cause notice was i....
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.... the creditors and contributories. 47. Learned senior counsel for the respondent placed reliance on the judgment of the Supreme Court in the case of M/s.Madhusudan Gordhandas & Co. Vs.Madhu Woollen Industries Pvt. Ltd., 1971 (3) SCC 632 and in particular paragraph 22 thereof and would submit that if there is opposition to the making of the winding up order by the creditors, the Court will consider their wishes and may decline to make the winding up order. He also placed reliance on the judgment of this Court in the case of Bharat Petroleum Corporation Limited (supra) and in particular paragraphs 2 to 6 and would submit that since an order of admission seriously affects the market position of a company, the wishes of the workers, creditors and the contributories has to be considered by this Court even at the admission stage of the winding up petition. He submits that this Court has after adverting to the judgments of the Supreme Court in the cases of M/s.Madhusudan Gordhandas & Co. (supra) and Bipla Chemical Industries Vs. Shree Keshariya Investment Ltd., (1977) 47 Company Cases 211 and other judgments has held that the right of the creditors to appear and be heard in all matters....
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....e 21 secured creditors opposing admission of the company petition, this Court shall not pass any order admitting this company petition. He submits that discretionary powers of this Court thus shall be exercised in favour of the respondent and not in favour of the petitioner. 51. Mr.Jagtiani, learned counsel for the intervenor in Company Application (L) No.517 of 2016 submits that the applicant has been appointed as a leader of consortium of 21 banks who have passed a resolution to oppose the company petition filed by the petitioner. He submits that those 21 members of the said consortium are also parties to the said JLF. He submits that total debts of the respondent towards those 21 members of the consortium is about Rs. 8593 crore. The principal amount of the petitioner is however only to the extent of Rs. 70 crore. He submits that the alleged liability of the petitioner recoverable from the respondent company is hardly 2% of the total debts of the other lenders and is at 1% of the debts of the total creditors. 52. In so far as the circulars issued by the Reserve Bank of India from time to time which are relied upon by the respondent is concerned, it is submitted by the lear....
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....the judgment in the matter of Advent Corporation Pvt. Ltd. (supra). 55. It is submitted by the learned counsel for the Intervenor that the Draft Techno Economic Viability Report has been already circulated amongst the members of the JLF. An Audit Draft Report is expected by end of January 2017. He submits that further meeting of the said JLF for taking further course of action for restructuring and revival of the respondent-company would be taken by the said JLF after such audit report is placed for its consideration. 56. In so far as the submission of the learned senior counsel for the petitioner that since the petitioner had not signed any Inter Creditor Agreement and Debtor Creditor Agreement and thus were not bound by the decision, if any, taken by the JLF is concerned, the learned counsel for the intervenor placed reliance on clauses 7.1, 7.3 and 9.2 of the said circular dated 26th February 2014 and would submit that those accelerated provision would apply if any default is committed after execution of Inter Creditor Agreement and Debtor Creditor Agreement. He submits that clause 7.3 specifically provides for the consequences for non-compliance of the obligations prior t....
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....gment of this Court in case of BNY Corporate Trustee Services Ltd. (supra) and also on the judgment of this court in case of Advent Corporation Pvt. Ltd. (supra). It is submitted that the judgment of this court in case of Bharat Petroleum Corporation Limited (supra) is per-incurium. He also placed reliance on some of the paragraphs of the judgment of this court in case of Tata Capital Financial Services Ltd. (supra). He submits that admittedly all the creditors of the respondent are not before this court. All the creditors whether unsecured or secured can oppose or support this winding up petition only if this petition is admitted and if the petition is advertised in accordance with the Company (Courts) Rules. He submits that the minutes of the meeting of the JLF also clearly indicates that different suggestions were given by the different creditors and there is total uncertainty whether any of the suggestions given by those lenders present in those JLF meetings were implementable or not. 60. It is submitted that the circular dated 26th February,2014 issued by the RBI does not override the contractual rights of the petitioner with the respondent. He submits that the said circ....
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....o the decisions taken in the meeting held by the said JLF, the respondent has not complied with any of those suggestion given/decision taken in the said JLF meeting. He submits that since July 2016, the discussion in the JLF meeting is going on without any substantial progress. He submits that the petitioner cannot be compelled to join SDR schemes propounded by the said JLF. He submits that though it is mandatory to attend the meetings of JLF, it is at the discretion of the petitioner whether to join SDR schemes or not. He submits that the petitioner also attended the meeting of JLF too and made various suggestions to revive the respondent company but it is not in the interest of the petitioner to wait and watch for a longer period for the outcome of the implementation of the various conflicting suggestions given by the lenders in the JLF. 65. Mr.Doctor, learned senior counsel for the respondent submits that the debt of the petitioner is only to the extent of 1% of the total debts of the creditors and 2% of the debts of the total creditors of the other banks and financial institutions who are supporting the respondent. He submits that in these circumstances, this court shall exe....
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....ditor's petition, that the petitioner has failed to make out that he is a creditor. 69. It is the submission of the learned senior counsel for the petitioner that the judgment of this Court in the matter of Advent Corporation Private Limited (supra) was not brought to the notice of this Court in case of Bharat Petroleum Corporation Limited (supra) decided by a learned single Judge of this Court and thus the judgment of this Court in case of Bharat Petroleum Corporation Limited (supra) is per-incurium. 70. The Supreme Court in case of M/s.Madhusudan Gordhandas & Co. vs. Madhu Woolen Industries Private Limited, (supra) had considered the issue whether the creditors of the company can be allowed to oppose the petition for winding up at the admission stage or not. The Supreme Court in the said judgment held that if there is opposition to the making of the winding up order by the creditors, the Court will consider their wishes and may decline to make winding up order . Under section 557 of the Companies Act, 1956 in all matters relating to the winding up of the company the Court may ascertain the wishes of the creditors. It is held that winding up order will not be made on a c....
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....troleum Corporation Limited (supra) squarely apply to the facts of this case. I am respectfully bound by the said judgments. 74. In my view, the judgment of this Court in the matter of Advent Corporation Private Limited (supra) is impliedly over-ruled by the Supreme Court in case of National Textile Workers' Union & Ors. (supra) and in case of M/s.Madhusudan Gordhandas & Co. (supra), which are delivered subsequently. I am thus not inclined to accept the submission of the learned senior counsel for the petitioner that the judgment of this Court in case of Bharat Petroleum Corporation Limited (supra) is per-incurium on the ground that the judgment of this Court in the matter of Advent Corporation Private Limited (supra) was not brought to the notice of this Court when the judgment in Bharat Petroleum Corporation Limited (supra) was delivered by this Court in the year 2004. 75. This Court in case of Tata Capital Financial Services Limited (supra) has adverted to the judgment of this Court and has held that broadly all aspects concerning advisability of a winding up order in the face of various circumstances, including a CDR package under implementation between a company and ....
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....sel for the petitioner that no prejudice would be caused to the respondent company or other set of creditors if they are not allowed to intervene at the admission stage of the company petition and they can be allowed to be heard or intervened after the petition is admitted and advertised. In my view, there is serious consequence of admission of the company petition and thus the Court has to apply its mind and consider the wishes of major creditors, workers and contributories if they intervene in the proceedings before passing an order of admission against the respondent company. 78. This Court in case of Hy-Line International vs. C & M Hy-Line Farms Private Limited, 2004 (3) Mh.L.J. 922 has followed the judgment of this Court in case of Bharat Petroleum Corporation Limited (supra) and has held that the secured creditors can be heard at the stage of admission of company petition and can be permitted to intervene. The said judgment applies to the facts of this case. I am respectfully bound by the said judgment. 79. Insofar as the facts of this case are concerned, it is not in dispute that the applicant - IDBI Bank Limited is a leader of Consortium of 21 banks and is authorized ....
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....d should be read with the latest master circular on "Income Recognition, Asset, Classification and Provisioning Pertaining to Advances" and any other instructions issued in that regard from time to time. 82. In paragraph 2.1, the loan accounts are classified in three categories. Clause 2.3 provides that as soon as the account is reported by any of the lenders to Central Repository of Information on Large Credits (CRILC) as SMA-2 category, they should mandatorily form a committee to be called Joint Lenders' Forum (JLF) if the aggregate exposure of lenders in that account is Rs. 1000 millions and above. It is thus clear that in the said event, formation of JLF is mandatory. It is not in dispute that the account of the respondent was classified as SMA-2. It is also not in dispute that the claim of the respondent and several other creditors is more than Rs. 1000 millions and the amount had not been serviced for more than 60 days. 83. Clause 2.6 of the said circular provides that all the lenders should formulate and sign an agreement which may be called as JLF agreement incorporating the broad rules for the functioning of the said JLF. The Indian Banks Association has to prepa....
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.... JLF should initiate recovery under option 3.1(c) i.e. recovery. 87. Clause 7 of the said circular provides for punitive action by subjecting defaulter banks as set out therein to accelerated provisioning for those accounts and / or other supervisory actions as deemed appropriate by the Reserve Bank of India. Clause 7.2 of the said circular provides that any of the lenders who have agreed to the restructuring decision under CAP by JLF and is a signatory to ICA and DCA, but changes their stance later on, or delays / refuses to implement the package. will also be subjected to accelerated provisioning requirement as indicated in paragraph 7.1. 88. Clause 5 of the said circular dated 24th September, 2015 clearly provides for exit option available to the lender. Dissenting lender who is not willing to participate in rectification or restructuring of an account has an option to exit their exposure completely by selling their exposure or to new or existing lender within the prescribed time line for implication of the agreed CAP. 89. A perusal of the circular / guideline dated 26th February, 2014 issued under sections 21 and 35 of the Banking Regulation Act, 1949 is mandatory in n....
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....hout the permission of the JLF and simultaneously any deviation from the commitment by borrowers affecting the security / recoverability of the loans would be treated as a valid factor for initiating recovery process for any such action to be sustainable, the lenders could sign an Inter Creditor Agreement and also could require the borrower to sign the Debtor Creditor Agreement which would provide the legal basis for any restructuring process. 92. In my view, the stage of execution of the said Inter Creditor Agreement or Debtor Creditor Agreement as the case may be, has not arisen till date. I am thus not inclined to accept the submission of the learned senior counsel for the petitioner that since the petitioner had not signed the said ICA or debtor Creditor Agreement, decision taken by the JLF would not be binding upon the petitioner. 93. A perusal of the said circular also indicates that the said circular further provides that if any lender including the petitioner does not wish to be a part of such a scheme, it is bound to sell its exposure to another lender. In my view, the learned senior counsel for the respondent is right in his submission that under the said circular, ....
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....se 6.2 of the said circular by the learned senior counsel for the petitioner in support of the submission that the said provision also indicates that unless and until the lenders are signatories to the Inter Creditor Agreement and the Debtor Creditor Agreement, the decision taken by the JLF for restructuring or for any other steps against the company is not binding is concerned, in my view, the said provision cannot be read in isolation. The Court has to consider and interpret all the provisions of the circular so as to give true and correct meaning thereof and has to interpret the circulars harmoniously. 98. In so far as the submission of the learned senior counsel for the petitioner that by the Reserve Bank of India's circular, the remedy of the petitioner to file appropriate proceedings for recovery of its dues against the borrower cannot be taken away or the petitioner cannot be forced to reduce its amount of its recovery from such borrower is concerned, it is not disputed by the petitioner that the circular issued by the Reserve Bank of India are statutory in nature and are binding on the banking companies including the petitioner. A perusal of the above referred circul....
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....turing is being decided by the said JLF, the entire process of corrective action plan i.e. by rectification and restructuring would be adversely affected. It is not in dispute that about 98% of the total numbers of creditors have resolved to oppose this winding up petition. The petitioner having about 2% debts of the total debts of the other lenders and at 1% of the debts of the total creditors thus cannot be allowed to proceed with winding up petition against the respondent. 102. Supreme Court in the case of Sudhir Shantilal Mehta Vs.Central Bureau of Investigation, (2009) 8 SCC 1 has held that having regard to the fact that the Reserve Bank of India exercises control over the banking companies, the said circular issued by the Reserve Bank of India was binding on the banking companies. A similar view has been also taken by the Supreme Court in the case of Sardar Associates and Ors. Vs. Punjab and Sind Bank and Ors., (2009) 8 SCC 257. The Supreme Court has adverted to its judgment in the case of Central Bank of India Vs. Ravindra, (2002) 1 SCC 367 in which it was held by the Supreme Court that the power conferred by Sections 21 and 35-A of the Banking Regulation Act, 1949 is cou....
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....e CDR scheme was not binding on the creditors whereas, the circulars/directives issued by the Reserve Bank of India under the provisions of the Banking Regulation Act, 1949 read with the Reserve Bank of India Act, 1934 are statutory in nature and are binding. 105. In this case, it is not in dispute that the JLF has already been formed pursuant to the circular dated 26th February 2014 issued by the Reserve Bank of India. The petitioner itself has participated in various meetings held by the said JLF and the said JLF who has taken various decisions from time to time. The auditor report of the respondent is being submitted as decided in the meetings held by the said JLF. The judgment of this Court in the case of BNY Corporate Trustee Services Ltd. Vs. Wockhardt Ltd. (supra) is thus clearly distinguishable in the facts of this case. 106. This Court in the case of Tata Capital Financial Services Ltd. Vs. Unity Infraprojects Ltd. & Ors. (supra) has distinguished the judgment of this Court in the case of BNY Corporate Trustee Services Ltd. Vs. Wockhardt Ltd. (supra) in view of the further steps taken by the creditors to revive the borrower-company. This Court has dismissed the compa....
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..... Gujarat High Court in the case of Tata Iron and Steel Co. (supra) has laid down various guidelines which are to be kept in mind before reaching a decision for winding up petition or for passing an order of winding up. It is held that merely because any one of the circumstances enumerated in section 433 of the Companies Act exists, the court is not bound to order winding up of the company. Nobody can aspire to wind up the company as a matter of course. The court has wide power and discretion. It is held that inability to pay debts is required to be judged from various sets of facts and circumstances. It is held that inability to pay debts in all cases, ipso facto, could not be construed as an appropriate case for winding up. 110. It is held that even if the debt is proved and even if the inability to pay the debt is also shown, it is not a launching pad, in all cases, for a successful winding up order. Inability may arise for a variety of reasons and the court is obliged to consider whether the inability is the outcome of any deliberate or designed action or mere temporary shock and effect of economy and market. It is held that in a given case, it may happen that a party may....
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....ctor by Dun and Bradstreet. The respondent has been featured in the list of World's top 250 Consumer Produce Companies prepared by Deloitte. The respondent has also remitted an aggregate amount of Rs. 14,89,00,000/- towards its direct tax liability for the Financial Year 2014-2015 and has paid an aggregate amount of Rs. 7,32,59,95,204/- as and by way of indirect tax liability for the Financial Year 2015-2016. It is the case of the respondent that the gross value of the fixed assets of the respondent is Rs. 4,019.97 crore as on 31st March 2016. It is the case of the respondent that it employs 8325 persons and has paid all its employees their wages. The total wages paid in the Financial Year 2015-2016 aggregates to Rs. 2,11,37,00,000/-. The respondent also claims to have paid dividend till last year. The petitioner has not seriously disputed the aforesaid details asserted by the respondent. 114. In these circumstances, when 98% of the creditors in value of the total debts of the respondent have agreed to oppose this petition for winding up and have been participating in the JLF's meetings to take steps for rectification and restructuring of the respondent and some decis....