BNP PARIBAS REPRESENTED HEREIN BY ITS CONSTITUTED ATTORNEYS Vs. UNITED BREWERIES (HOLDINGS) LIMITED COMPANY

JUDGEMENT

(1.) All these appeals are preferred against the common order passed by the learned Company Judge in Company Application Nos.437, 441, 440, 439 and 438/2012 in Company Petition Nos.122, 121, 248, 185 and 57/2012 decided on 24th May 2013, where on an application filed under Section 536(2) read with Section 537(1) of the Companies Act, 1956 (for short hereinafter referred to as 'the Act'), granted permission to the Company to sell 13,612,591 equity shares of United Spirits Limited (USL) held by it, to Relay B.V. and Diageo Plc and others acting in concert, at a sale price of Rs.1,440/- per equity share and other consequential directions. Therefore, all these appeals are taken up for consideration together.

(2.) For the purpose of convenience, the parties are referred to as they are referred to in the Company Petitions.

(3.) The petitioner BNP Paribas is a Company organized and existing under the laws of Republic of France, which has a registered office at 16, Boulevard Des, Italiens- 75009, Paris, France, which is a Bank. The petitioner financed the acquisition of three Aircrafts by Kingfisher Aero. However, they secured guarantees from the respondent United Breweries (Holdings) Limited. On account of default committed by the Kingfisher, the petitioner became entitled to invoke the guarantees issued by the respondent. The total amount due to the petitioner as on 2nd November 2012 is in a sum of US$ 26,634,728 which roughly amounts to Rs.180 crores. Therefore, the petitioner invoked the guarantee and called upon the respondent to make the aforesaid payment. When the said amounts were not paid, petitioner through its Advocate issued a statutory notice of winding up dated 5th July 2012 under Sections 433 and 434 of the Act, calling upon the respondent to make payment of the said sum of US$ 26,634,728 to the petitioner within 21 days from the date of receipt of the statutory notice. The statutory notice was duly served upon the respondent by registered post acknowledgement due and hand delivery at its registered office and the office stated in the guarantee deed and was received by the respondent on 6th July 2012. On receipt of the said legal notice, the respondent has failed to repay the sums demanded or respond in any manner whatsoever to the aforesaid statutory notice for winding up. Therefore, on 5th November 2012, the petitioner presented this petition for an order of winding up the respondent under the provisions of the Companies Act and for other consequential reliefs.