M/S. Unitech Power Transmission ... vs M/S. Independent Mobile ...
2010 Latest Caselaw 4882 Del

43
%      24.11.2010

       Present:     Mr. Avneesh Garg, Advocate applicant in Co.Appln.
                    No.305/2010.
                    Mr. Maniktala, Advocate for the petitioner.
                    Mr. H P Sahu, Advocate for applicant in
                    Co.Appln.1426/2010
                    Mr. Satyajit A. Desai and Mr. Somnath Padhan,
                    Advocates for intervenor
                    Mr. Rajat Navet, Advocate for respondent.
                    Ms. Purnima Sethi, Advocate for OL.


+      Co.Appl.Nos.1425 & 27/2010 and Co.Appln.No.1555-56/2010 in
       Co.Pet. No.158/2009
*

These applications for condonation of delay in filing of the

pleadings are allowed.

Co.Appl.No.1288/2009 and Co.Appln.No.1561/2009 in Co.Pet. No.158/2009

1. By order dated 17th September,2009 the company petition was

admitted and citations were directed to be published in the

newspapers and Official Liquidator was appointed as the provisional

liquidator with a direction to take possession all assets, books of

accounts and records of the respondent company. This order was

passed as respondent company had not appeared despite service.

2. Co.Appl.No.1288/2009 has been filed by the respondent company

for setting aside of the ex-parte order and Co.Appl.No.1561/2009 has

C.P.No.158-2009 Page 1 been filed for keeping in abeyance the order appointing provisional

liquidator and publication of the citations.

3. During the pendency of the present petition two more company

petitions for winding up have been filed by Introspective Detectives

Pvt. Ltd. and Maa Pitambara Traders. Co.Appl.Nos.410/2010,

1517/2010, 1519-26/2010, 1529/2010, 1590/2010 have been filed by

various parties under Section 446 of Companies Act, 1956 read with

rules 6, 9 and 101 of the Company Court Rules, 1959 for being

transposed as petitioners, if required, as they have claim against the

respondent company.

4. The applicant has stated that the respondent company has spent

Rs.146 crores approx. for erecting infrastructure and assets in the

form of telecom communication towers apart from office

administration and other expenses including salaries. It is stated that

the respondent company erected 709 telecom communication towers

out of which 10 towers are operational and another 280 towers are in

operation ready state and in the remaining 319 towers, work is in

progress. It is stated that the entire business of erecting telecom

communication towers is without any credit from bank or financial

institutions. It is further stated that the respondent company has

entered into contracts with mobile companies including Aircel,

C.P.No.158-2009 Page 2 BSNL, Tata Tele Service Maharashtra for using the telecom towers.

It is pointed out that these telecom towers have been installed in the

states of Uttar Pradesh, Madhya Pradesh, Rajasthan and

Maharashtra.

5. During the course of hearing on 1.11.2010 learned counsel for the

management of the respondent company had prayed for time to

obtain instructions whether the promoters would bring in funds in

view of the large number of claims of the unpaid creditors. The case

was adjourned to 10.11.2010. On 10.11.2010 counsel for the

management of the respondent company had stated that he had

received a positive communication but required clarification.

Accordingly, the matter was adjourned to 18.11.2010. On

18.11.2010 it was stated by the counsel appearing for the

management of the respondent company that the promoters were

ready and willing to bring in Rs.5 crores provided the present

winding up petitions and applications under Rule 101 were

withdrawn. This was obviously not acceptable to the counsel for the

petitioners and the counsel for the applicants and this was contrary to

the understanding of the basis of which the matter was adjourned on

10.11.2010.

C.P.No.158-2009 Page 3

6. Learned counsel appearing for the management of the respondent

company today states that the promoters are ready and willing to

infuse and bring in fresh funds to the extent of Rs.5 crores within

one month. It is stated that the said amount will be deposited in a

bank account opened in the name of the company. Out of Rs.5

crores, 4 crores will be distributed and paid to the creditors of the

company including the workmen and statutory creditors. The balance

amount of Rs.1 crore will be utilized for day to day working

requirements of the company. He states that the promoters have

given up their condition that the company petitions and the

applications should be withdrawn. He states that the matter may be

adjourned for a period of six months to enable the respondent

company to get back on rail and satisfy the creditors. He further

states that fixed assets of the respondent company will not be sold or

transferred or encumbered without permission of the court. The

respondent company should be, however, permitted to lease out the

telecom towers in normal course of business to telecom companies to

earn revenue/income.

7. Looking at the nature of the investment by the respondent company,

offer made by the promoters to infuse Rs.5 crores within one month

and the fact that the telecom towers are in the process of being

C.P.No.158-2009 Page 4 constructed and also looking at the interest of the creditors, these two

application are being disposed of with the following directions :

a. The promoters will bring in Rs.5 crores within one month, which

will be deposited in a new bank account in the name of the

respondent company.

b. After Rs.5 crores is deposited in the said new bank account, the

provisional liquidator shall be informed and the management will

be entitled to take over all the assets, books of accounts and

statutory records of the respondent company. Offices will be de-

sealed and the bank accounts will be de-frozen.

c. Rs.1 crore out of the deposited amount of Rs.5 crores will be

deposited in one of the earlier bank accounts of the respondent

company to be used for day to day business.

d. Rs. 4 crores will be paid off to the existing creditors of the

respondent company including workmen and statutory creditors

on pro-rata basis. The said payments will be made by cheques

which will be jointly signed by the OL and one person from the

management of the respondent company. In case there is any

difficulty or urgency in payment, parties will be at liberty to

apply for modification or appropriate directions with regard to

payment.

C.P.No.158-2009 Page 5 e. The fixed assets of the respondent company will not be sold,

transferred or encumbered without permission of the court.

However, the respondent company will be entitled to enter into

lease/license agreement in respect of telecom towers in normal

course of business. Inventory of all fixed assets of the respondent

company will be prepared and signed by the management and

furnished to the Official Liquidator.

f. Within ten days from today OL will download entire data from

the computer relating to accounts and print out will be taken.

Photocopies of the books of accounts will be taken. The aforesaid

exercises will be carried out in the presence of a representative of

the management and the petitioning creditor in CP No.158/09.

The downloaded data/print outs and the photocopies of the books

of accounts will be authenticated by the authorized representative

of the management of the respondent company and the

petitioning creditor. Expenses incurred for the said purpose will

be initially paid out of common pool fund but will be reimbursed

out of Rs.5 crores which will be brought in by the management.

g. The management will file fortnightly statement of accounts of all

receipts and expenditure and furnish copy of all lease

agreement/license agreement entered into after passing of this

C.P.No.158-2009 Page 6 order with the OL. It will be open to the petitioning creditor to

approach the OL to obtain copy of the lease/license agreement.

h. Deposit of Rs.5 crores by the promoters will be made within one

month from today or earlier. It is only on the deposit of the

amount that the order appointing OL as provisional liquidator

shall cease to operate and shall be treated as withdrawn. In case

deposit is not made within one month these applications will be

treated as dismissed.

8. On the basis of the books of accounts, OL will prepare a list of

creditors and file this list in the Court so as to enable disbursement of Rs.4

crores amongst creditors. The said list will be prepared by the OL within a

period of 3 weeks from the date of authentication of the books of accounts.

It will be open to the management to point out whether any of the creditors

have been paid on or after appointment of the provisional liquidator. In this

regard it is noted that Rs.15.5 crores were withdrawn by the management

company from Citi Bank and HDFC Bank after appointment of the

provisional liquidator. It is the stand of the respondent company that this

amount has been paid to the creditors of the respondent company including

Govt. creditors. Print out of the said bank statement has been obtained.

These payments if required will be verified and taken into consideration

while making payment to creditors from Rs.4 crores. The aforesaid

C.P.No.158-2009 Page 7 arrangement is an ad hoc arrangement, which can be changed/withdrawn if

required and necessary.

Co.Pet. No.158/2009

List Co.Pet.No.158/2009 and all pending applications on 25 th

January, 2011.

Dasti.

SANJIV KHANNA, J.

      NOVEMBER 24, 2010
      Vld/VKR/vld




C.P.No.158-2009                                                     Page 8