1. The petitioner HDFC Bank has preferred this petition under Section 433 read with Section 434 of the Companies Act, 1956 ("the Act" for short) seeking winding up of respondent Online Infocom Private Limited.
2. The case set out by the petitioner Bank in the petition is that the respondent Company has taken a business loan to the tune of Rs.15,00,000/- vide loan Account No.12109479, after executing the necessary documents in favour of the petitioner. Thereafter, the respondent Company defaulted in repayment of the loan, despite repeated requests and reminders. According to the petitioner, an amount of Rs.14,05,701.26 paisa is due and payable by the respondent as on 04.09.2004. A Statutory Notice, dated 07.09.2009, under the provisions of Section 434 of the Act, was issued by the petitioner Bank and has been received by the respondent. As the respondent failed to make payment of the outstanding amounts even thereafter, the petitioner has approached this Court by filing the present petition.
3. When the petition is taken up for hearing, Mr. P.M. Dave, learned advocate for Mr. Asit B. Joshi, learned counsel for the petitioner Bank has submitted that the contesting parties have arrived at a mutually agreeable resolution and settlement, that has been reduced to writing by way of a Memorandum of Understanding.
Ragesh Mahendrabhai Shah, Director of the respondent Company, is present in person, and has confirmed that a settlement has been arrived at between the petitioner Bank and the respondent Company that has been reduced in writing by way of a Memorandum of Understanding dated 06.06.2012. A copy of the Memorandum of Understanding has been jointly tendered by the learned counsel for the petitioner Bank and the respondent Company to the Court, and is taken on record. It is submitted by the learned counsel for the petitioner Bank that the respondent Company has offered to make payment of the amount claimed by the petitioner Bank in instalments as per the Schedule of Payment executed between the parties and incorporated in the Memorandum of Understanding.
Ragesh Mahendrabhai Shah, Director of respondent Company has stated that the respondent Company shall make payment as per the "Schedule of Payment" incorporated in the Memorandum of Understanding to the petitioner Bank, as agreed upon.
6. In view of the settlement arrived at between the parties and the Memorandum of Understanding executed between them, the learned counsel for the petitioner Bank as well as Mr. Ragesh Mahendrabhai Shah, Director of the respondent Company have jointly submitted that the petition be disposed of.
7. The learned counsel for the petitioner Bank have, however, submitted that in the event that the Schedule is breached by the respondent Company at any subsequent point of time or if there is any delay, default or failure on the part of the respondent Company in executing the Memorandum of Understanding and the Schedule of Payment, then the right of the petitioner Bank for taking out appropriate proceedings, including proceedings for winding up, may be kept open for all times to come and liberty as above, may be reserved to the petitioner.
Ragesh Mahendrabhai Shah, Director of the respondent Company, has no objection if liberty, as above, is granted.
9. It is submitted by the Official Liquidator that by order dated 10.10.2011, this Court has admitted the petition and directed the publication of advertisement in two daily news papers i.e. English Edition of Ahmedabad, "Times of India" and Gujarati Edition of Ahmedabad, "Divya Bhaskar". The Official Liquidator attached to this Court has been appointed as Provisional Liquidator to take custody and charge of the properties and assets as well as Books of Accounts of the respondent Company. The Official Liquidator states that pursuant to the said order, the premises of respondent Company have been sealed and he is in the process of taking custody and charge of the properties and assets of the respondent Company.
10. Having heard the learned counsel for the petitioner Bank, the Director of the respondent Company and the Official Liquidator, it appears that the parties have arrived at an amicable settlement by way of the Memorandum of Understanding executed between them and the respondent Company has agreed to pay the dues claimed by the petitioner Bank as per the Schedule of Payment incorporated therein
11. The petition is, therefore, disposed of in the following terms:
(1) The appointment of the Official Liquidator attached to this Court as Provisional Liquidator of the respondent Company, is recalled. The Official Liquidator shall open the seals placed on the properties of the respondent Company, forthwith.
(2) Any Books of Accounts of the respondent Company that may have been taken into the custody of the Official Liquidator shall be duly returned to the respondent Company.
(3) As the contesting parties have arrived at a settlement in terms of the Memorandum of Understanding, the petition is being disposed of on the joint request of the parties, without any objection from other side.
(4) It is clarified that this order shall not stand in the way of the petitioner Bank in taking out a fresh proceedings in case it becomes necessary to do so, upon default of failure on the part of the respondent Company in executing the Memorandum of Understanding or upon two consecutive defaults in the Schedule of Payment, for the same purpose and under the same provision.
Subject to the above directions, the petition stands disposed of.
(Smt. Abhilasha Kumari, J.) PIYUSH Top