A.S. Gadkari, J. - (1.) By the present petition under sections 433(e), 434 read with section 439 of the Companies Act, 1956, the petitioner has prayed for winding up of the respondent-company, namely, Vandana Global Ltd. Heard Mr. Dinyar Madan, learned senior counsel appearing for the petitioner and Shri Pradeep Sancheti, learned senior counsel appearing for the respondent at length and perused the record.
(2.) The petitioner is a non-banking financial company (NBFC) and carries on business of extending credit facilities by way of term loan and of providing solutions to various companies : I II (i) It is the case of the petitioner that, Vandana Udhyog Ltd. (for the sake of brevity referred to as the "borrower") approached the petitioner for availing of financial assistance, representing that, it is financially sound and is in a position to honour its financial commitments sought for. After due deliberation the petitioner vide its offer letter dated October 16, 2011 gave an offer to the borrower for an infra term loan of Rs. 100 crores. The said loan was required by the borrower for infusion of equity into the power project floated by Vandana Vidhyut Ltd., for setting up a 540 Mega Watt Power Project at Village Salora, Katghora, District Korba in Chhattisgarh. The offer made by the petitioner was subject to the terms and conditions which were duly accepted and acknowledged by the borrower through its authorized representative by affixing its rubber stamp and signature. That, the offer letter dated October 16, 2011 is a binding contract between the borrower and the petitioner. (ii) That, in pursuance of the said offer letter dated October 16, 2011 the petitioner and borrower entered into a "loan agreement" dated January 6, 2012 recording the terms and conditions of the loan facilities granted by the petitioner to the borrower. The aforestated offer letter dated October 16, 2011 also formed part of the said loan agreement. That, the respondent along with the borrower and Vandana Ispat Ltd. (VIL) also executed an option agreement of even date, i.e., January 6, 2012 which according to the petitioner, is in fact a guarantee agreement, in favour of the petitioner. That under the option agreement dated January 6, 2012 the borrower, the respondent and Vandana Ispat Ltd. (VIL) irrevocably, absolutely and unconditionally agreed and undertook to the petitioner that, in the event of occurrence of an "event of default" under the loan agreement, the petitioner, at its discretion may issue a "put notice" and upon receipt of such "put notice", the borrower, the respondent and Vandana Ispat Ltd., shall without demur or protest, make payment of the exercise price to the petitioner and accept by way of an assignment from the petitioner the facility along with all rights and liabilities thereunder. (iii) The relevant clauses of the said option agreement dated January 6, 2012 are reproduced hereinbelow for the sake of convenience : Whereas : (1) At the request of the borrower, IFIN has agreed to provide a term loan of Rs. 1,000 million to the borrower (rupees one thousand million only) ("the facility") in terms of loan agreement dated January 6, 2012 ("facility agreement"). (2) It is a condition for IFIN agreeing to grant the facility that VGL and VIL provide IFIN with an unconditional and irrevocable option to sell and assign the facility to VGL and VIL along with the associated rights thereunder in the event an event of default occurs under the facility agreement. Article I (1.1) In this agreement, unless the subject or context otherwise requires, the following words and expressions shall have the following meanings : (a) "Exercise price" shall mean the aggregated amount of all debts and monetary liabilities of the borrower to IFIN which are owed, incurred and outstanding as principal, together with interest, fees, charges, cost, expenses and all other monies whatsoever payable by the borrower along with penalties, if any, under the facility agreement and any other document in relation to the facility upon the occurrence of an event of default under the facility agreement. (b) "Put notice" means the notice substantially in the form set out in Schedule I attached hereto served by IFIN to VGL and VIL pursuant to article 2.1 of this agreement. (c) "Put option" means the right but not the obligation of IFIN to sell and assign the facility to VGL and VIL on the terms and conditions contained in this agreement and demand payment of the exercise price. (d) "Put option event" shall mean, the occurrence of an event of default under the facility agreement. Article II Put option VGL and VIL hereby irrevocably, absolutely and unconditionally agree with and undertake to IFIN that in the event of the occurrence of an event of default under the facility agreement IFIN may, at its discretion, issue the put notice; and upon the receipt of the put notice VGL and VIL shall, without demur or protest, make payment of the exercise price to IFIN and accept by way of assignment from IFIN the facility along with all rights and liabilities thereunder. Article III Representations, warranties and covenants 3.2. VGL and VIL agree and undertake that VGL and VIL shall, jointly and severally in good faith take all steps and perform such action and deeds as may be required or necessary to obtain any approval/consent/confirmation/permission from any agency (either regulatory, statutory, Government or otherwise) to facilitate and effectuate the assignment hereunder. Article TV Termination This agreement will terminate on the happening of the following events. (a) On due repayment of all outstanding amounts under the facility by the borrower to IFIN, or (b) On the receipt of the exercise price by IFIN from VGL and VIL in terms of article 2.1. (iv) That, for the purpose of securing the facility in terms of loan agreement the borrower along with Viconic Vyapaar P. Ltd. (WPL) also executed a pledge agreement dated January 6, 2012 thereby pledging in favour of the petitioner the pledged securities described in Schedule thereto. The borrower also gave corporate guarantee of Viconic Vyapar Ltd. (WL) and personal guarantee of Mr. Vinod Agarwal, Mr. Subash Agarwal, Mr. Ashok Agarwal, Mr. Gopal Prasad Agarwal, Mr. Prahalad Agarwal and Mr. Vijit Kumar Agarwal. The borrower issued post-dated cheques for the principal amount and interest in favour of the petitioner and also executed demand promissory note. (v) After execution of the aforestated agreements and documents the petitioner disbursed the entire amount of Rs. 100 crores (less deduction in terms of the loan agreement read with offer letter) in favour of the borrower from January 24, 2012 to January 17, 2013. It is the further case of the petitioner that the said loan was availed of, enjoyed and utilized by the borrower and the borrower made payment of interest till June 30, 2013 and thereafter for the reasons best known to it, despite repeated requests and reminders by the petitioner the borrower made defaults in payments. That the petitioner thereafter by its various letters dated July 19, 2013, July 31, 2013, August 9, 2013 and September 25, 2013 recorded defaults committed by the borrower in payment of interest due since July 1, 2013 and called upon the borrower to pay overdue interest immediately. As the borrower did not pay the amount due and payable, the petitioner issued letters dated December 6, 2013 and January 9, 2014 calling upon it to make payment of the outstanding dues including interest dues and the loan management fees, payable to the petitioner under the facility agreement. (vi) The petitioner thereafter issued a legal notice dated February 12, 2014 to borrower and the respondent recording various events of defaults committed by the borrower and called upon the borrower to pay outstanding dues to the petitioner. That, the said notice was also given with respect to the enforcement of the securities by taking such steps/actions, under the facility agreement/pledge agreement and other security documents executed in favour of the petitioner to secure the facility/loan advanced by the petitioner. The borrower by its reply dated February 18, 2014 admitted the loan availed of from the petitioner however expressed several difficulties for non-payment of the amount due and payable under the facility agreement. (vii) It is the further case of the petitioner that, as an event of default had occurred, as contemplated under the loan agreement, the petitioner exercised the terms of option agreement and issued a put notice dated February 21, 2014 calling upon the respondent and Vandana Ispat Ltd. (VIL) to make payment of Rs. 111,99,14,652 being the exercise price on the date of issuance of the said put notice. By its response dated March 10, 2014 to the said put notice, the respondent disputed the exercise of the option by the petitioner and called upon the petitioner to withdraw the put notice. On account of continuing default by the borrower and the option parties, including the respondent, the petitioner left with no other alternative and invoked the pledge of shares of Viconic Vyapaar Ltd. (VVL) and sold those shares in the period ranging from April 3, 2014 to October 6, 2014 at the rate of approximately Rs. 23 per share to Rs. 23.23 per share and gave credit of the said realized amount to the borrower. (viii) As the respondent failed and/or neglected to make payment of the debt due to the petitioner, the petitioner issued a statutory notice dated September 13, 2014 as contemplated under sections 433 and 434 of the Companies Act, 1956. (ix) That by its reply dated September 27, 2014 though the respondent admitted the facilities availed of by the borrower, denied its liability under the option agreement on various grounds as set out therein. As the respondent did not pay the said amount of debt mentioned in the statutory notice, the petitioner filed Company Petition No. 782 of 2014 against the respondent on February 25, 2015. In the said petition, the respondent filed an affidavit in reply dated January, 2015 (the date of affirmation of affidavit in the compilation of petition is blank), inter alia, admitting the fact that, the respondent was only a guarantor to the alleged claim made by the petitioner against Vandana Udyog Ltd., under the option agreement dated January 6, 2012 and the said petition was filed against the respondent to pressurize it. Despite admitting its liabilities as guarantor the respondent opposed the petition on the ground that the amount mentioned in the statutory notice dated September 13, 2014 differs from the amount mentioned in the put notice dated February 21, 2014. The said Company Petition No. 782 of 2014 was withdrawn on February 25, 2015 by the petitioner with liberty to file a fresh petition after serving a fresh statutory notice on the respondent-company. (x) That, the respondent by its letter dated March 4, 2015 purportedly terminated the option agreement dated January 6, 2012 for the reasons mentioned in the said letter. The petitioner by its response letter dated May 14, 2015 denied the said termination. (xi) That, since all the four instalments under the facility/loan agreement were due and payable, the petitioner through its advocate's issued a fresh demand notice dated May 11, 2015 to the borrower. As the borrower failed to comply with the demands of the petitioner, the petitioner once again exercised the option agreement and issued a put notice dated May 15, 2015 to the respondent calling upon it to make payment of an amount of Rs. 121,92,14,334 being exercise price payable by the respondent to the petitioner as on May 11, 2015. The respondent did not make the said payment as was called upon to pay by the put notice dated May 15, 2015 the petitioner therefore through its advocate issued a statutory notice dated May 18, 2015 at the registered office of the respondent-company calling upon the respondent-company to pay to the petitioner a sum of Rs. 121,92,14,334 being exercise price payable by the respondent to the petitioner as on May 11, 2015. Despite service of the said statutory notice the respondent did not pay the debt to the petitioner.
(3.) The petitioner therefore filed the present petition on July 13, 2015. The petition is accepted on August 11, 2015 and in pursuance of the directions issued by the company registrar the petitioner served a copy of the petition upon the respondent. After service of notice, the respondent-company entered its appearance and has filed an affidavit in reply dated September 30, 2015.;