KOTAK MAHINDRA BANK LIMITED Vs. SIVANANDA STEELS LIMITED

JUDGEMENT

(1.) This Company Petition is filed for winding up of the respondent company and for appointment of the Official Liquidator to take charge of the assets of the respondent company. On 05.08.1995, the respondent company had entered into a hire purchase agreement with Upasana Finance Limited in respect of certain machinery for an aggregate value of Rs. 43,99,625/-, repayable in 36 instalments. A lease agreement was also entered into on 08.08.1995 for a sum of Rs. 25.00 lakhs, payable in 60 monthly instalments. Pending these hire purchase and lease agreements, the respondent company became sick and a reference was made under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to as 'SICA') before the Board of Industrial and Financial Reconstruction (hereinafter referred to as 'BIFR'). The said reference was taken on file in Reference No. 107 of 2000. By order dated 22.9.2000, BIFR declared the respondent company as Sick Industrial Unit under Section 3(1)(o) of the SICA Act. Thereafter, BIFR, by order dated 09.08.2005, sanctioned a scheme taking the cut off date as 31.3.2003.

(2.) In the meanwhile, on 16.05.2006, the petitioner Kotak Mahindra Bank Limited, (hereinafter referred to as 'KMBL') got the debts assigned in their favour from Upasana Finance Limited. On 18.4.2006, BIFR discharged the respondent company from the purview of SICA on the successful implementation of the sanctioned scheme. There is yet another transaction between the respondent company and Upasana Finance Limited, which was also taken over by the petitioner bank, of which the Court is not presently concerned with.

(3.) The petitioner company issued a statutory notice dated 12.3.2007 under Section 434(e) of the Companies Act claiming a sum of Rs. 5,35,41,382/- in respect of the hire purchase and lease agreement entered into with Upasana Finance Limited. The respondent company, on 10.4.2007 responded to the said notice denying the liability as well as the claim, as not maintainable. Thereafter, on 15.4.2008, a sum of Rs. 19,92,244/- was paid by the respondent company, as per the scheme sanctioned by the BIFR, to the petitioner, which was declined by the petitioner on 16.4.2008 and thereafter on 5.5.2008, the petitioner company once again issued statutory notice under Section 434 of the Companies Act claiming a sum of Rs. 7,98,28,443/- as on 29.4.2008. This notice has been replied by the respondent company denying the liability as above.