TASNEEM PATEL Vs. AAT ACADEMY INDIA LIMITED

JUDGEMENT

(1.) THE instant Company Petition is instituted by the petitioner Mrs. Tasneem Patel, claiming herself to be the secured creditor under Sections 433(e), 433(f), 434(1) and 439 of the Companies Act, 1956 (hereinafter referred to as "the Act"), seeking winding up of the respondent company AAT Academy India Limited (hereinafter referred to "respondent company") on the alleged failure of the respondent AAT Academy to pay its debt, which is claimed to be due under promissory note dated 15.4.2010 and to appoint the Official Liquidator to take charge of the affairs of the company and for costs.

(2.) THE respondent company, which was incorporated on 17th November 1999 as Access Atlantech Technologies (India) Private Limited, subsequently changed its name to Access Atlantech Edutainment (India) Limited, changed its name to AAT Academy India Limited and consequent to the change of name, fresh certificate of incorporation was issued as per Annexure No. 1. The main object of the respondent company is to provide generalised and specialised education and training in the field of computers, software, applications, systems analysis and design, software engineering, audio engineering, video engineering, multimedia work, work -based learning, and to design, develop, market and export all kinds of software application, services and products in areas like graphics, communications, operating systems, man machine interface database, expert system, Computer Aided Designs, Computer Aided Manufacturing, Computer aided Software Engineering, internet and e commerce activities, etc. According to the petitioner, when the Promoter Director and CEO of the respondent Company [for short, "Borrower"] approached her for loan for the expansion of business, she provided a sum of Rs. 37,50,000/ - under a promissory note dated 15th April, 2010, which is shown as Annexure No. 4 and the Managing Director of the respondent company, in turn, executed a Guarantee Agreement dated 17th April, 2010 enclosed as Annexure No. 5, as security for repayment of the loan including interest, costs, charges and / or other monies availed by the Borrower. The further case of the petitioner is that in addition to the guarantee provided under the Guarantee Agreement, the respondent pledged 1,00,000 Equity Shares held by it in M/s. Greycells Education Ltd., which was formerly known as Greycells Entertainment Limited [for short, "Greycells") in her favour vide Board Resolution dated 12.4.2010 (Annexure No. 6). During October 2010, since the borrower failed to repay the loan amount along with the outstanding interest @18% p.a. and as it was agreed by the parties to enhance the rate of interest to 24% per annum from August 2011, the petitioner by letter dated 03.10.2011, called upon the borrower to make payment of the outstanding amount followed by another communication dated 11th November, 2011, enclosed as Annexure No. 7, stating that the amount recoverable from sale of shares, which would be approximately Rs. 21 Lacs, would be appropriated towards part payment principal and interest. In order to recover the outstanding amount, the petitioner also by letter dated 10.02.2012, intimated the Borrower that if he fails to repay the amount of Rs. 4,12,500/ - towards principal and interest to date, by 16th February, 2012, she will be compelled to sell the 1,00,000 Equity Shares of Greycells pledged by him as security. However, since he has failed and neglected to pay and honour his commitments, she sold the 1,00,000 equity shares of Greycells pledged by him at Rs. 19/ - per share, in total, to a sum of Rs. 19,00,000/ - and adjusted the proceeds towards outstanding interest of Rs. 4,24,315/ - and balance towards principal loan amount after adjustment for stamp duty on transfer of shares and informed the same to the Borrower by letter dated 24th February 2012 (Annexure No. 9) besides indicating that a sum of Rs. 22,69,565/ - is due as outstanding balance principal loan amount as on that date. She further asked him to settle the same by March 15, 2012.

(3.) 1. The petition for winding up was resisted by the respondent. It is stated that when the respondent was on the look out for funds for expansion and was seeking investment from various investors, Mr. Rathish Babu, Managing Director of the respondent Company was introduced to one Vivek Suchanti, founder of Concept Communications Limited, who, in turn, introduced him to Bela Desai, (hereinafter called "Bela") and Sanjay Chainani (referred as, ~Sanjay"). According to the respondent, Bela and Sanjay, who are promoters of Greycells, also carry on business in a company called Value Line Advisory Pvt. Ltd.