Yes Bank Ltd. vs M/S International Electron ...
2013 Latest Caselaw 3551 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CO.PET. 608/2012

       YES BANK LTD.                                      ..... Petitioner
                          Through:     Mr. Nitesh Jain, Advocate.

                          versus

       M/S INTERNATIONAL
       ELECTRON DEVICES LTD.                               ..... Respondent
                     Through: None.

CORAM:
HON'BLE MR. JUSTICE R.V.EASWAR


R. V. EASWAR, J.: (ORAL)


1.     This is a petition filed by YES Bank Ltd. under Section 433(e)/

434(1)(a)/ 439 of the Companies Act, 1956 seeking winding up of the

respondent company for non-payment of an amount of `11,77,65,057.22

paise. The amount represents the loan advanced by the petitioner to the

respondent, including interest.


2.     Notice of the petition was issued to the respondent but it could not

be served since the office of the respondent was shut down and no other

address was available. Substituted service was ordered. The petitioner



CO. PET. 608/2012                                          Page 1 of 5
 accordingly got the respondent served through publication in „The Times

of India‟ (English) and „Hindustan‟ (Hindi). Notice was also got served

by affixation at the registered office of the respondent. Thereafter, it

appears that another publication was carried out in „The Times of India‟

dated 30.06.2013. Despite the publication of the notices, there was no

appearance on behalf of the respondent nor any reply was filed. The

petition was, therefore, taken up for hearing today in the absence of the

respondent.


3.     The learned counsel for the petitioner has drawn my attention to

the balance sheet of the respondent company as on 31.03.2011 in which

an amount of `1,240 lakhs has been shown as rupee loan from the

petitioner-bank, by way of Note No.2A of Schedule C. This serves as an

acknowledgement of the debt as on 31.03.2011 and thus the debt is not

barred by limitation. The learned counsel for the petitioner has also

drawn my attention to Annexure P-30, which is a letter dated 29.07.2011

written by the respondent to the petitioner, which is as follows: -


       "To,
       YES Bank Limited,
       D-12, South Extension, Part-II,
       New Delhi-110049
       Dear Sir(s)


CO. PET. 608/2012                                           Page 2 of 5
        Re:     Credit Facility(s) granted to us

       We do hereby confirm, acknowledge and admit the
       correctness of the outstanding amount due to the Bank in
       respect of following facilities:

       Nature      of   the Limits in Force (`)   Amount Outstanding
       facility(s)                                as on May 31, 2011
                                                  (`)
       i. Term Loan (TL)     INR 150,000,000/- INR        126,000,000/-
                             (Indian Rupees One (Indian Rupees One
                             Hundred        fifty Hundred Twenty Six
                             Million Only)        Million Only)



       We hereby further confirm that the documents executed by
       us from time to time in respect of above mentioned
       facilities are valid and binding on us.

       We hereby further state that this letter may be treated as
       acknowledgement of debt from us as per Section 18 of
       Limitation Act, 1963.

       Yours sincerely,

       For International Electron Devices Ltd.
             Sd/-
       Managing Director"


4.     Thus both the balance sheet as on 31.03.2011 and the letter dated

29.07.2011 contain an acknowledgement and an admission of the debt

due to the petitioner bank. The bank issued a statutory notice dated

26.09.2012 (Annexure A-33) which contains a demand of the amount of



CO. PET. 608/2012                                             Page 3 of 5
 `11,77,65,057.22 paise from the respondent and asking it to pay the said

amount within the stipulated period as per Section 434(1)(a) of the

Companies Act. The notice was served on the respondent as seen from

the copies of the acknowledgements from the courier agency as well as

the Indian Post. There was no reply by the respondent company to the

aforesaid notice.


5.     In the aforesaid facts, I am satisfied that the respondent company

has neglected to pay the debt due to the petitioner bank. The debt is

admitted and not disputed.


6.     The OL attached to this Court is appointed as the Provisional

Liquidator („PL‟) of the Respondent. The OL is directed to take over all

the assets, books of accounts and records of the Respondent forthwith.

The OL shall also prepare a complete inventory of all the assets of the

Respondent before sealing the premises in which they are kept. He may

also seek the assistance of a valuer to value the assets. He is permitted to

take the assistance of the local police authorities, if required.


7.     Publication of the citation of the petition be effected in the Official

Gazette, „The Statesman‟ (English) and „Jansatta‟ (Hindi) in terms of

Rule 24 of the Companies (Court) Rules, 1959 („Rules‟). The cost of

CO. PET. 608/2012                                             Page 4 of 5
 publication shall be borne by the Petitioner.


8.     The Directors of the Respondent are directed to strictly comply

with the requirements of Section 454 of the Companies Act, 1956 and

Rule 130 of the Rules and furnish to the OL a statement of affairs in the

prescribed form verified by an affidavit within a period of 21 days from

today. They will also file affidavits in this Court, with advance copies to

the OL, within four weeks setting out the details of all the assets, both

movable and immovable, of the Respondent company and enclose

therewith the balance sheets, profit and loss accounts and copies of the

statements of all the bank accounts for the last three years.


9.     A report be filed by the OL before the next date of hearing.




                                                       R. V. EASWAR, J.

AUGUST 12, 2013 hs