DEUTSCHE TRUSTEE COMPANY LIMITED Vs. MASCON GLABAL LIMITED

JUDGEMENT

(1.) The appellant, being the petitioner in C.P.No.171 of 2012, filed the Company Petition before the learned single Judge seeking to wind up the respondent Company and to appoint the Official Liquidator, High Court as the Liquidator to conduct the affairs and thereafter distribute the assets in accordance with law. The Petition filed by the appellant was dismissed on the ground that the power deed executed by the trustee is insufficiently stamped and the trustee has not produced the authorisation as required under Clause 10 of the Trust deed dated 27.12.2007 from the Bondholders of atleast one quarter in principal amount of the Bond read with condition No.17 of the Bonds. Challenging the said order passed, the present appeal has been filed.

(2.) The appellant is a Company incorporated under the Laws of England , being engaged in the business of providing corporate trustee services. The appellant is a creditor of the respondent Company on behalf of the Bond holders for a sum of USD 64036036.29 under the Bonds along with the accrued interest apart from default interest. After several communications, as the required payment was not forthcoming, the appellant served a statutory winding up notice on the respondent. A reply was given on behalf of the respondent by its advocates stating that a detailed reply to the winding up notice was being prepared. However, no such reply was forthcoming. Accordingly, the appellant filed the Company Petition. After the arguments were over, a memo was filed by the appellant seeking to place on record certain decisions along with the 25% of the authorisation as required from the Bondholders. The learned single judge, while rejecting the memo, was pleased to dismiss the Company Petition as not maintainable as there was no authorisation on record and the power of attorney executed by the appellant to the power holder was insufficiently stamped. Challenging the same, the present appeal has been filed. Pending appeal, the appellant has filed an application in M.P.No.1 of 2013 under Order XLI Rule 27 of the Civil Procedure Code seeking to receive certain documents, which include a fresh power deed executed in favour of the power holder and the authorisation letter of 25% of the Bondholders as required under clause 10(1) of the Trust deed dated 27.12.2007.

(3.) The learned Senior Counsel for the appellant submitted that the fact that 25% of the Bondholders have directed the trustee to take action in accordance with Clause 10.1 of the trust deed is not in dispute. The leaned single Judge ought to have taken the said document into consideration. The memo has also been served on the respondent. Even otherwise as per the avements made in the Company Petition, the trustee is entitled to take action as per the Trust deed dated 27.12.2007 and the offering Circular dated 20.12.2007 If the power deed is insufficiently stamped as it was executed abroad, the only recourse that can be adopted is to order impounding of the said document by directing the appellant to pay the deficit stamp duty. Even the said issue has paled into insignificance in view of the subsequent one obtained. There is no dispute about the executant of the power deed. The respondent has not given any reply to the notice issued and therefore the learned single judge ought not to have dismissed the Company Petition. The respondent is being adjudicated before the Company Court at the instance of a third party, whose Company Petition has already been admitted. In support of his submission, learned Senior Counsel has made reliance upon the following judgments: