ICICI BANK LTD. Vs. CLASSIC DIAMONDS (INDIA) LTD.

JUDGEMENT

(1.) THE Company Petition seeks winding up of the Respondent company on the ground of deemed inability to pay its debts within the meaning of Section 433 and 434 of the Companies Act, 1956 ("the Act").

(2.) ONE Aarohi Diamonds Ltd. (in which the Respondent holds 49 % shareholding) had obtained a credit facility (loan) up to the sum of USD 7 million from the Petitioner bank. This loan was inter alia secured by a corporate guarantee issued by the Respondent in favour of the Petitioner. The credit facility was subsequently restricted to the sum of USD 5 millions. The principal borrower defaulted in repayment of the loan availed of under the credit facility. The Petitioner, thereupon, by its letter dated 3 January 2012, cancelled the credit facility with immediate effect calling upon the borrower to make payment of USD 5.15 millions towards the dues outstanding as on 3 January 2012. On 6 February 2012, the Petitioner invoked the corporate guarantee calling upon the Respondent company to pay a sum of USD about 5.20 millions as on 6 February 2012. Upon non -payment of the amount under the corporate guarantee, by its statutory demand notice issued under Section 433 and 434 of the Act, on 16 February 2012, the Petitioner called upon the Respondent to pay a sum of about USD 5.21 millions equivalent to about Rs. 21.71 crores as on 14 February 2012. There is neither compliance with nor reply to the statutory notice on the part of the Respondent. The Petitioner has, in the premises, approached this Court seeking winding up of the Respondent company.

(3.) IN support of his submission that the transaction between parties is entered into by the Hong Kong branch of the Petitioner and, therefore, the present petition cannot be maintained by the Petitioner carrying on business at its principal or corporate office in India, learned Counsel for the Respondent relies upon the judgment of the Supreme Court in case of Agencia Commercial International Ltd. & Ors. Vs Custodian of the Branches of Banco Nacional Ultramarino : (1982) 2 Supreme Court Cases 482 and of Calcutta High Court in the case of Chainrup Sampatram Vs Punjab and Sind Bank : 2008 Indlaw CAL 766.