Patherya, J. - (1.) IN this winding up petition the petitioning creditor is claiming sums on account of rentals payable by the company to it. The case of the petitioning creditor is that the company entered into a Master Lease Agreement with Leasing IQ (I) Private Limited (Leasing IQ). Under the said agreement equipments were given on rent by Leasing IQ to the company. Payment was to be made as per rental schedule. Subsequently, the petitioning creditor purchased the receivables arising out of the rental equipment from Leasing IQ. By virtue of the said purchase the rental schedule became payable by the company to the petitioning creditor. Necessary documents thereafter were executed between the parties. One of the clause of the rental agreement was that in the event the company defaulted in making payment it will be liable to pay interest at the agreed rate. The company defaulted in making payment of the lease rentals and a notice was issued on 1st July, 2013 by the petitioning creditor calling upon the company to make payment. In its reply the company acknowledged its liability and requested for re -scheduling payment. As no payment was forthcoming, termination notice was issued on 8th August, 2013 and a statutory notice under Sections 433 & 434 of the Companies Act on 13th August, 2013. In spite of receipt of the statutory notice no reply was given thereto and as no payment was made the instant application filed. By virtue of the notice of assignment, the master lease agreement so also the rental schedule and post dated cheques were assigned to the petitioning creditor by Leasing IQ. Notice of such assignment was given to the company. This, therefore, entitles the petitioning creditor to avail of all remedies available to the assignor Leasing IQ for breach of any of the terms of the agreement including the recovery of rentals.
(2.) BY Clause 2.3 of the Receivable agreement the company assigned to the use of the financier all right, title, interest in the receivables with liberty to enforce payment. In case of default the petitioning creditor was entitled to exercise powers for recovery of receivables, and was also entitled to initiate proceedings for such recovery. By virtue of the notice of assignment, the petitioning creditor became entitled to exercise the same powers as Leasing IQ was entitled to exercise. An irrevocable power of attorney was also issued by Leasing IQ in favour of the petitioning creditor. Reliance is placed on AIR (1937) Cal 765, 175 Company Cases 107, 177 Company Cases 15, : (1999) 5 SCC 688, 113 Company Cases 68. Section 439(2) has also been relied on.
(3.) IN opposing the said application Counsel for the company submits that the claim is inflated and the winding up petition is not maintainable by the petitioning creditor as the assignment cannot be relied on by virtue of Section 35 of the Stamp Act. The statutory notice was issued on 13th August 2013. An irrevocable power of attorney was executed on 17th February, 2011 entitling the petitioning creditor to do all things necessary including recover and realise payment of receivables in the name of and on behalf of the assignor Leasing IQ. Therefore, independently no recovery can be made by the petitioning creditor. As arbitration proceedings have been initiated and till the arbitrator adjudicates, the amount remains unascertained. Failure to pay or secure Under Section 434(1)(a) of the 1956 Act will not give rise to a debt. As no debt exists and disputes referred to arbitration, so also exercise of law of election, no order need passed on this application. The arbitration proceedings were filed in November 2013, i.e., after the filing of this application.;