JUDGMENT
Anoop V. Mohta, J.
1. The petitioner-bank have invoked the provisions of Sections 433 and 434 of the Companies Act, 1956, as in spite of the receipt and service of statutory notice dated October 17, 2002, exhibits “C” and “D” the respondent-company failed to make the payment of the amount due and payable to the tune of Rs. 26,35,00,000 (rupees twenty six crores and thirty five lakhs only).
The petitioner is a body corporate constituted under the provisions of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980, having its office at Andhra Bank Building, Sultan Bazar, Hydrabad-500 195, and the company above named, i.e., Silver Line Technologies Ltd., is a company duly incorporated and registered under the Companies Act, 1956 (1 of 1956), having its registered office at No. 1405, Maker Chamber-V, Nariman Point, Mumbai-400 021 (hereinafter referred to as the said “company”).
2. The main objects for which the company is incorporated are, inter alia, to design, develop, export, import or deal in computers, including computer based equipments and systems related to software and computer programmes and accessories to design, develop and render technical know-how, to run education centre and coaching classes and also to assist in electronics, marketing, systems and management relating to computers, computer machinery and computer science to produce, process, dye, print and otherwise deal in textiles, cotton, etc.
3. As on November 15, 2002, the company is indebted to the petitioner in the sum of Rs. 27,66,53,538.95. In or about June 17, 2000, one Intelli Group Asia P. Ltd. (hereinafter referred to as the said “Intelli”) availed of certain credit facilities for its business from the petitioner. The said Intelli was transferred with all its assets and liabilities to one Seranova India P. Ltd.
4. By the deed of guarantee dated September 17, 2001, duly executed at Hyderabad, by the said company in favour of the petitioner for a sum of Rs. 33.26 crores, the company in consideration of the petitioner giving credit for accommodation or granting facilities to the said company or its subsidiary company by making, opening, continuing a loan/overdraft/cash credit account or by discounting/purchasing or negotiating bills with or without security and/or/in consideration of the bank opening and giving letters of credit and/or trust receipt facilities in favour of the said company provided that the liability of the company shall not exceed on the whole, a sum of Rs. 33,26,00,000 apart from and in addition to all interests, banking, law and other costs, charges and expenses.
5. The company also issued another guarantee on June 19, 2002, in favour of the petitioner for existing liabilities of the said company for Rs. 26,54,34,000. As on September 30, 2002, an aggregate sum of Rs. 27,18,18,427.95 became due and payable by the said company to the petitioner together with further interest thereon.
6. The petitioner by its letter dated September 11, 2002, called upon the said company to regularise its account with the petitioner. Once again the petitioner by its advocate’s letter dated October 17, 2002, addressed to the said company and to the said Seranova, inter alia, called upon and demanded from the said company and/or the said Seranova the entire outstanding dues in respect of the loan account of the said Seranova, but the said company and the said Seranova failed and neglected to pay to the petitioner the said sum of Rs. 27,18,18,427.95 or any part thereof.
7. The petitioner says and submits that the company is and/or is deemed unable to pay its debts, therefore, it is just and equitable, proper and in the interest of justice and in the interest of its creditors that the said company be wound up and the official liquidator or some other fit and proper person be appointed as the liquidator of the said company and the petitioner prays accordingly.
8. The respondent-company by their affidavit/reply to the petition dated July 16, 2004, resisted the admission of the petition. However, by order dated December 16, 2004, rejecting the said defence raised, i.e., as the goods which are lying as security and therefore, there is no crystallised debt with the company.
9. The petition should be, therefore, dismissed. Firstly, the claim amount of Rs. 26,35,00,000 is taken note of and even if the security by hypothecated goods are taken into consideration, the balance claim is sufficient to consider the prayer clauses as made in the petition. The non initiating of the proceedings against the principal debtor is no ground to dismiss the present company petition for winding up, pursuant to the deed of guarantee for the aforesaid appeal. The adjudication even if pending and/or not yet finalised, but in the facts and circumstances of the case, where admittedly in spite of raising the same defence, this Court on December 16, 2004, admitted the petition.
After admission of the petition and after completing all the formalities required under the law, the petition is now listed for final hearing. The matter has been on board and adjourned from time to time as none appeared for the respondent, today again none appeared for the respondent. The respondent as already noted has waived the service as recorded in the order dated December 16, 2004.
10. In view of Skol Breweries Ltd. v. Sanman Distributors P. Ltd. , after considering the Rules 27, 28 and 31 of the Companies (Court) Rules, 1959, this Court has observed specifically in paragraph 9 as under (page 441):
I have also no hesitation to hold that the procedure in the manner laid down under Rules 27 and 28 has to be mandatorily followed and complied with on admission of winding up petition save and except where at the time of admission of winding up petition, the company is represented by its advocate and the notice is waived or is dispensed with by the court, otherwise notice to the company has to be issued and served in a winding up petition in accordance with the provisions contained in the Companies (Court) Rules. Failure to comply with the procedure as required under Rules 27 and 28 unless ordered otherwise by the court may entail in dismissal of the company petition under Rule 31 and that also indicates the mandatory nature of Rules 27 and 28. The procedure contemplated by Rules 27, 28 and 29 cannot be permitted to be substituted by self-invented procedure of sending intimation about the admission of winding up petition to the company by the petitioning creditor. Such exercise of intimation is no service in the eye of law in the face of mandatory provisions of Rules 27 and 28.
11. Therefore, at this stage, having once accepted and waived the notice, the requirement of Rule 28 is not necessary. In this background the facts and averments made in the petition remain uncontroverted. Even assume for a moment some defence was raised at the time of the petition but at this stage of time, the respondent-company ought to have submitted their defence as well as admitted the present petition. The court has rejected all those defence. The order dated December 16, 2004, also remains intact. In this background, in the absence of specific positive steps or any additional affidavit or fresh affidavit, I am of the view that as the averments made remained uncontroverted including the fact and demand of Rs. 26,35,00,000.
12. It appears that, ultimately the dispute as raised was not bona fide, the claim as such is also within the limitation.
Resultantly, the petition is allowed in terms of prayer Clauses (a), (b) and (f). However, this order will come into force after two months. Meanwhile, the respondent-company is at liberty to settle the matter or to make the payment as demanded.