1. The petitioner-Bank is before this Court in this petition filed under Section 433(e) and (f) read with Section 434 and 439 of the Companies Act praying that the first respondent-company be wound up by this Court and the Official Liquidator be appointed to take possession of the assets and properties of the company.
2. The respondents have appeared and filed their objection statement. The contention put forth in the petition is disputed and in addition, it is pointed out that the petitioner-Bank has already initiated recovery proceedings before the Debt Recoveries Tribunal and also option under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short) has been exercised.
3. Heard the learned counsel appearing for the parties and perused the petition papers.
4. The petitioner Bank contends that the first respondent had availed loan as per the Term Loan Agreement dated 31.10.2006 and the Master Credit Facility Agreement dated 31.10.2006. In this regard, the first respondent is stated to have executed on demand promissory notes dated 31.10.2006 and also the other documents such as agreement of hypothecation of goods, vehicles, plant and machinery, stock and book debts. The respondent Nos.2 and 3 who are the Directors of the company have also executed personal guarantee for due payment of the loan and have executed deed of guarantee dated 31.10.2006.
5. The case of the petitioner is that the amount due has not been repaid. As on the date of the presentation of the petition, the first respondent-company was due in a sum of Rs. 14,75,07.945.75ps. Hence, it is contended that despite issue oi notice, the respondents have not paid the amount and therefore, the first respondent company is liable to be wound up.
6. As noticed, the respondents have filed their objection statement and have pointed out that the petitioner company has already filed the recovery application in OA No.471/2010 before the Debts Recovery Tribunal for recovery of the amount as claimed in the instant petition. It is also pointed that a notice dated 22.12.2009 was issued under Section 13(2) of the SARFAESI Act. It is no doubt true that notwithstanding other avenues available, the proceedings for winding up could be initiated, if it is established that the company is unable to pay its debts and is not commercially solvent. However, in the instant case, it is noticed that the petitioner has not only made the first respondent-company a party to the petition, but also impleaded the Directors on the ground that they had signed the personal guarantees. The company petition would be maintainable only against the company However, taking note of the fact that the Directors have been impleaded on the ground that they had executed personal guarantee, it would indicate that the petition is filed as if in the nature of a recovery proceedings.
V. In this regard, since the petitioner has already instituted proceedings before the Debts Recoveries Tribunal and Debts are also secured by different agfe-fements as stated above including hypothecation of the machineries and since the petitioner Bank has the remedy of recovery as contemplated under the SARFAESI Act. in the case of a present nature. I am of the opinion that the petition is premature. If at all the petitioner-Bank ultimately succeeds in the proceedings before the Debts Recoveries Tribunal and towards recovery of the loan, if the personal guarantees are applied and still if the petitioner is unable to recover its debts and at that stage, it is found that the first respondent-company is commercially insolvent and the debts due cannot be discharged by them, it would still be open for the petitioner to file a petition for winding up at that stage. This view expressed by me is fortified by the decisions relied on by the learned counsel for the respondent in the case of Pradeshiya Industrial and Investment Corpn of U.P. vs. North India Petro Chemicals Ltd [(1994)3 SCC 348] and Manipal Finance Corporation Lid. vs. CRC Carrier Ltd 1(2001) 107 Comp cos 288 (Bom)].
8. In that view of the matter, I am of the opinion that the petitioner herein should be allowed to avail his remedy before the appropriate forum for recovery of the debts and only thereafter if the petitioner is able to point out that the amounts are to be recovered from the first respondent alone and that the first respondent is not able to discharge the same, the petitioner would have the liberty of instituting fresh petition at that stage.
The petition is dismissed. No order as to costs.