TaxTMI 
TaxTMI 
2018 (4) TMI 1806
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....ompanies Act, 1956 having its registered office at No. 119, St. Mary's Road, Abhiramapuram, Chennai-600 018. 3. Brief facts : (a) The entire issue in controversy arises out of loan agreements dated February 24, 2012 and April 15, 2014 (pages 15-68 of the petition) entered into between the petitioner/financial creditor and M/s. Rajkumar Impex Ghana Ltd. (the principal borrower), the wholly owned subsidiary of the respondent-company. Each of these loan agreements contain exclusive jurisdiction clause conferring jurisdiction to the courts of England and Wales. (b) Pursuant to the said loan agreement, the petitioner/financial creditor and the respondent entered into a deed of guarantee dated April 12, 2012 which specifically made the guarantee an "on demand guarantee" which was invocable on demand. Independent of the respondent's obligation as a guarantor, the said deed also contained an indemnity issued by the respondent to the petitioner/financial creditor. (c) As per clause 19.2 of the guarantee and indemnity deed dated April 12, 2012 between the petitioner/financial creditor and the respondent herein it is clear that the Tribunal has competent ....
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....ney has been recovered till date pursuant to the same the English court passed an order dated August 8, 2017 analyzing the evidence. The parties to the agreement have agreed to submit themselves to the juris diction of English courts and English law. The said order was certainly an order on merits. This order is proof of default at the end of the respondent. It is on the basis of this default of the respondent (as recognized by decree of the English courts) that the present petition has been filed. (f) Learned counsel for the petitioner submitted that M/s. Rajkumar Impex Ghana Ltd. (in short principal borrower) is the subsidiary of the respondent herein and has borrowed money to the tune of US $ 10,849,284.88 from the petitioner/financial creditor and has failed to repay the said amount as per the terms and conditions of loan agreements. Since the principal borrower has failed to repay the loan amount, the petitioner/ financial creditor filed a suit before the Ghana court and is pending for disposal. The respondent herein is a guarantor to said loan amount by way of a deed of indemnity and guarantee with the petitioner/financial creditor dated April 1, 2012 in which the re....
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.... against the guarantor and the guaranteed liabilities are recoverable only under certain conditions as envisaged under clause 2.2 of the said deed of guarantee and indemnity dated April 12, 2012. It was further argued that it was not proved by way of pleadings filed before this Tribunal including the order of the hon'ble High Court of Jus tice, Queen's Bench Division, Commercial Court, London that none of the circumstances warranted the invocation of guarantee or the fact that debt is not recovered has been established. Further, the order made by the hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, London is not conclusive as the same has not been given on merits and relied on the provision of section 13 of the Code of Civil Procedure,1908 in support of his submissions. (h) Further, the provision of the Foreign Exchange Management (Guarantee) Regulations, 2000 mandates permission to be obtained from the Reserve Bank of India (RBI) prior to signing of the guarantee. Admittedly, no approval has been obtained and no valid guarantee has been executed. Suppressing clause 2.2, a suit was filed before the hon'ble High Court of Justice, ....
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....ntrol and that the winding up would not be in best interests of the company and also for the reasons that the petitioning creditor had other remedies which could be pursued by him to enforce his rights ; (2) [2001] 5 SCC 265 (International Wollen Mills v. Standard Wool (U. K.) Ltd.)-it was held on facts that the decree was not on merits and could not be enforced in India. (3) [2001] 107 Comp Cas 288 (Bom) ; [2001] SCC Online Bom 1179 (Manipal Finance Corporation Ltd. v. CRC Carrier Ltd.) it was held that there is no dispute about the pendency of the arbitration proceedings for the same cause of action. Therefore the present petition cannot be entertained and the same deserves to be dismissed . . . The winding up petition is not a legitimate means to seek to enforce payment of the debt which bona fide disputed by the company . . . ; (4) [2008] 142 Comp Cas 647 (Bom) (China Shipping Development Co. Ltd. v. Lanyard Foods Ltd.) it was decided whether the foreign court had jurisdiction and that judgment of English court was rendered on merits ; (5) Company Appeal (AT) (Insolvency) No. 30 of 2017-Palogix Infrastructure P. Ltd. v. ICICI Bank Ltd. [2018]....
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....n, Commercial Court, London is conclusive and it was made on merits even though it is an ex parte order, it is based on the consideration of the matter by studying the evidence on record. The IB Code, 2016 does not prohibit filing a petition by foreign creditor. He further submitted that rule 23 of the National Company Law Tribunal Rules read with Form 1 permits an authorised representative to present an application or petition before the Tribunal and the authorised representative includes an authorised agent. The board of directors authorized the power of attorney to file the petition under the IB Code, 2016 and the power of attorney is signed by the directors of the petitioner/financial creditor. Finally learned counsel for the petitioner/financial creditor submitted that the FEMA (Guarantee) Regulations, 2000 are not applicable as they apply only if the principal debtors/borrower is an Indian. Learned counsel for the petitioner relied on the following case laws in support of his submissions : (1) [1969] 39 C-C 133 (SC) ; [1969] 1 SCC 620 (Bank of Bihar Ltd. v. Dr. Damodar Prasad), [2012] 173 C-C 105 (SC) ; AIR 2012 SC 2288 (Ram Kishun v. State of U. P.), ....
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.... (6) Civil Appeal No. 15135 of 2017-Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd. [2018] 1 C-C-OL 644 (SC) it was held that there is no restriction on a duly authorized power of attorney holder signing on behalf of the company to initiate proceedings under the IB Code, 2016 and there is no restriction on a foreign company initiating proceeding under the IB Code, 2016. In view of the above, learned counsel for the petitioner/financial creditor prayed for allowing the petition and initiate corporate insolvency resolution process against the respondent. (j) Heard both the parties and perused the pleadings. (k) Taking into consideration the submissions made by both the par ties, the issue that arise before us is whether the petitioner/financial creditor has made out a prima facie case under the IB Code, 2016 for the purpose of initiating corporate insolvency resolution process against the respondent who is the guarantor for the principal borrower or not. It is on record that the petitioner/financial creditor initiated proceeding against the respondent/guarantor before the hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, L....
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....decree made by the hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, London. Since the respondent failed to defend its case before hon'ble High Court of Justice, Queen's Bench Division, Commercial Court, London, now it cannot contend that the said order is not on merits. The case laws relied by learned counsel for the petitioner is in support of the clarification to the queries raised by the respondent. In view of all the submissions made by the parties and the observations made, the Tribunal concludes that the petitioner/financial creditor has made out a prima facie case under the IB Code, 2016. (m) In view of the above observations, we hereby admit the petition as the petitioner has made out a prima facie case and also proved that there is a debt due payable by the principal borrower and there is a decree made against the respondent/guarantor. This Tribunal has no jurisdiction to enforce the foreign decree ; however there is no bar in it taking cognizance of the foreign decree. The English Commercial Court is recognized under sections 13 and 44A of the CPC : "44A. Execution of decrees passed by courts in reciprocating terri....
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....ency resolution process which shall ordinarily get completed within 180 days, reckoning from the day this order is passed. (p) We appoint Ms. Deepa V. Ramani (registration No. IBBI/IPA-002/ IP-00118/2017-2018/10287), having office at No. 40, TNHB Complex, No. 180 Luz Church Road, Chennai-600 004 as an interim resolution professional (IRP) proposed by the applicant. There is no disciplinary proceedings pending against the IRP and is name is reflected in IBBI website. The IRP is directed to take charge of the respondent/corporate debtor's management immediately. The IRP is also directed to cause public announcement as prescribed under section 15 of the IB Code, 2016 within three days from the date of receipt of this order and call for submissions of the claim in the manner prescribed. (q) The Tribunal declares that the moratorium shall have effect from the date of this order till the completion of corporate insolvency resolution process for the purpose referred to in section 14 of the IB Code, 2016. The Tribunal orders for the prohibition of the following, namely : * The institution of suits or continuation of pending suits or proceedings against the co....