Pushpa Sathyanarayana, J. - (1.) THE instant Company Petition is instituted by the petitioner Mrs. Tasneem Patel, claiming herself to be the secured creditor under Sections 433(e), 433(f), 434(1) and 439 of the Companies Act, 1956 (hereinafter referred to as "the Act"), seeking winding up of the respondent company AAT Academy India Limited (hereinafter referred to "respondent company") on the alleged failure of the respondent AAT Academy to pay its debt, which is claimed to be due under promissory note dated 15.4.2010 and to appoint the Official Liquidator to take charge of the affairs of the company and for costs.
(2.) THE respondent company, which was incorporated on 17th November 1999 as Access Atlantech Technologies (India) Private Limited, subsequently changed its name to Access Atlantech Edutainment (India) Limited, changed its name to AAT Academy India Limited and consequent to the change of name, fresh certificate of incorporation was issued as per Annexure No. 1. The main object of the respondent company is to provide generalised and specialised education and training in the field of computers, software, applications, systems analysis and design, software engineering, audio engineering, video engineering, multimedia work, work -based learning, and to design, develop, market and export all kinds of software application, services and products in areas like graphics, communications, operating systems, man machine interface database, expert system, Computer Aided Designs, Computer Aided Manufacturing, Computer aided Software Engineering, internet and e commerce activities, etc. According to the petitioner, when the Promoter Director and CEO of the respondent Company [for short, "Borrower"] approached her for loan for the expansion of business, she provided a sum of Rs. 37,50,000/ - under a promissory note dated 15th April, 2010, which is shown as Annexure No. 4 and the Managing Director of the respondent company, in turn, executed a Guarantee Agreement dated 17th April, 2010 enclosed as Annexure No. 5, as security for repayment of the loan including interest, costs, charges and / or other monies availed by the Borrower. The further case of the petitioner is that in addition to the guarantee provided under the Guarantee Agreement, the respondent pledged 1,00,000 Equity Shares held by it in M/s. Greycells Education Ltd., which was formerly known as Greycells Entertainment Limited [for short, "Greycells") in her favour vide Board Resolution dated 12.4.2010 (Annexure No. 6). During October 2010, since the borrower failed to repay the loan amount along with the outstanding interest @18% p.a. and as it was agreed by the parties to enhance the rate of interest to 24% per annum from August 2011, the petitioner by letter dated 03.10.2011, called upon the borrower to make payment of the outstanding amount followed by another communication dated 11th November, 2011, enclosed as Annexure No. 7, stating that the amount recoverable from sale of shares, which would be approximately Rs. 21 Lacs, would be appropriated towards part payment principal and interest. In order to recover the outstanding amount, the petitioner also by letter dated 10.02.2012, intimated the Borrower that if he fails to repay the amount of Rs. 4,12,500/ - towards principal and interest to date, by 16th February, 2012, she will be compelled to sell the 1,00,000 Equity Shares of Greycells pledged by him as security. However, since he has failed and neglected to pay and honour his commitments, she sold the 1,00,000 equity shares of Greycells pledged by him at Rs. 19/ - per share, in total, to a sum of Rs. 19,00,000/ - and adjusted the proceeds towards outstanding interest of Rs. 4,24,315/ - and balance towards principal loan amount after adjustment for stamp duty on transfer of shares and informed the same to the Borrower by letter dated 24th February 2012 (Annexure No. 9) besides indicating that a sum of Rs. 22,69,565/ - is due as outstanding balance principal loan amount as on that date. She further asked him to settle the same by March 15, 2012. 3.2. Since all her efforts went in vain, the petitioner issued a notice of demand on December 3, 2012. Subsequently, as no amount was forthcoming, a statutory notice under Sections 433 and 434 of the companies was issued on 25th March 2013 (Annexed as Annexure No. 11) calling upon the respondent to pay the dues of Rs. 28,65,014/ - along with interest @ 24% within 21 days of the receipt of the notice. According to the petitioner, the respondent company is in an extremely precarious and unstable financial position and its liability exceeds its assets. The company does not possess the requisite funds to meet the financial obligations and also to make payments towards the admitted contractual commitments. With these averments, the petitioner has filed the petition for winding up of the respondent -company.
(3.) 1. The petition for winding up was resisted by the respondent. It is stated that when the respondent was on the look out for funds for expansion and was seeking investment from various investors, Mr. Rathish Babu, Managing Director of the respondent Company was introduced to one Vivek Suchanti, founder of Concept Communications Limited, who, in turn, introduced him to Bela Desai, (hereinafter called "Bela") and Sanjay Chainani (referred as, ~Sanjay"). According to the respondent, Bela and Sanjay, who are promoters of Greycells, also carry on business in a company called Value Line Advisory Pvt. Ltd. 4.2. It is also the case of the respondent that Concept Group has significant investments in Greycells, which is engaged in event management business and had pan India presence in Media and Communication and even outside India in Dubai. It is stated that the respondent company and Greycells decided to join hands in making investment and accordingly, Greycells proposed investment of Rs. 12.48 Crores for acquiring 26% of paid up capital of the respondent company and the same was agreed by memorandum of understanding dated 18.7.2008. Greycells invested upto 11% of paid up capital by bringing in Rs. 5.04 Crores. 4.3. The main averment of Rathish Babu, Managing Director and promoter of the respondent is that, when he was in need of financial assistance, Bela promised to arrange financial assistance of Rs. 37.50 Lakhs at interest of 18% p.a. payable on monthly basis, for a period of 180 days and he made it clear that the respondent was not part of this financial transaction as financial assistance was sought by him. It is also stated by him that he solely relied on Bela and has never met the petitioner and that the creation of pledge of 1,00,000 shares held by answering respondent in Greycells as security for payment of the financial assistance availed by the Managing Director was not accepted by the respondent. While so, Bela managed to obtain the Letter of Guarantee dated 15.04.2010, Board Resolution dated 13.4.2010 and Share Transfer Deeds dated 13.4.2010 convincing the respondent that it would only be an administrative formality and he received the financial assistance of Rs. 37,50,000/ - on 21.4.2010. 4.4. It is further averred that the petitioner is not an independent financier and that her husband Abbas Patel, who is Chairman and Director of Greycells, and Bela and Sanjay, Director and promoter respectively of Greycells are closely associated. As such, according to the respondent, the loan transaction with the Managing Director and various sham documents executed by the answering respondent was device to retrieve the 1,00,000 shares of Greycells. The further case of the respondent is that the present winding up petition is filed to exert pressure on respondent company, which is a going concern and is for collateral purpose. In the circumstances, the respondent prays that the petition may be dismissed with costs.;