R.D Dhanuka, J.:— By this petition, the petitioner seeks winding up of the respondent company on the ground that the respondent is unable to pay its debts.
2. The petitioner has provided a term loan facility to the tune of Rs. 100 crore to M/s. Core Education and Technologies Limited on the terms and conditions contained in the facility agreement.
3. In so far as the respondent is concerned, the respondent is an associated company of the said borrower and has executed a Corporate Guarantee in favour of the petitioner to secure repayment of the said loan in the sum of Rs. 100 crore plus interest thereon.
4. It is the case of the petitioner that the principal borrower as well as the respondent committed default in making repayment of the said amount. On 3rd April 2013, the petitioner issued a notice of Event of Default to the borrower. The petitioner has also issued a letter of reminder to the borrower on 3 April 2013. On 26th June 2013, the petitioner invoked the Corporate Guarantee provided to the petitioner to the respondent. On 27 February 2014, the petitioner issued a statutory notice to the respondent calling upon the respondent to repay the total outstanding amount of Rs. 34,50,48,279.89 under the 30 Crore Facility Agreement. On 28 March 2014, the respondent through its advocate acknowledged the debt due to the petitioner but raised certain vague and baseless issues. The petitioner denying those baseless allegations vide its advocate's letter dated 28 March 2014. The respondent once again through advocate's letter dated 25 August 2014 raised irrelevant and baseless issues. The petitioner thus filed this petition.
5. According to the petitioner, the petitioner has to recover a sum of Rs. 1,15,39,99,758.94 with further interest theron.
6. Learned counsel appearing for the petitioner invited my attention to serious and baseless issues raised in the affidavit-in-reply which are denied by the petitioner in the affidavit-in-rejoinder. He also invited my attention to a detailed order passed by this court on 6 April 2015 against the respondent herein in Company Petition No. 927 of 2014 thereby rejecting all similar contentions raised by the respondent in the affidavit-in-reply and admitting the said petition against the respondent. The said order dated 6 April 2015 passed by this Court against the respondent is not impugned by the respondent.
7. Learned counsel for the petitioner invited my attention to the order dated 29 March 2016 passed by the Division Bench of this Court in Appeal No. 259 of 2016 and other connected appeals arising out of the order dated 13 October 2015 passed by the learned Single Judge in Company Petition No. 926 of 2014 filed by the principal borrower against the petitioner against an order of admission of the petition which appeals came to be dismissed by a detailed order passed by this Court on 29 March 2016.
8. Learned counsel appearing for the respondent submits that the respondent has raised contentious issues in the affidavit-in-reply which shall be dealt with by this Court before passing any order.
9. A perusal of the order passed by this Court on 6 April 2015 in Company Petition No. 927 of 2014 clearly indicates that similar contentions are already rejected by this Court in the said order in the said petition filed by the respondent herein which order is not admittedly impugned by the respondent.
10. A perusal of the order passed by the Division Bench on 29 March 2016 further indicates that the Division Bench has observed that the order dated 6 April 2015 passed in Company Petition No. 927 of 2014 has not been challenged and the same has attained finality.
11. In view of the defence raised by the respondent are not bonafide and are moonshine. In my view, the respondent is unable to pay its debts and is commercially insolvent.
12. I therefore pass the following order:—
(i) The company petition is admitted and is made returnable on 24 April 2017.
(ii) The petitioner shall advertise the petition in two local newspapers, viz. “Free Press Journal” (in English) and “Navshakti” (in Marathi) and also in Maharashtra Government Gazette. Any delay in publication of the advertisement in the Maharashtra Government Gazette and any resultant inadequacy of the notice shall not invalidate such advertisement and shall not constitute noncompliance with this direction or with the Companies (Court) Rules, 1959.
(iii) The learned counsel appearing for the respondent-company waives service of the company petition under Rule 28 of the Companies (Court) Rules, 1959.
(iv) The petitioner shall also deposit an amount of Rs. 10,000/- with the Prothonotary and Senior Master of this Court towards the publication charges, with intimation to the Company Registrar within two weeks from the date of admission of the petition failing which, the petition to stand dismissed for non-prosecution without further reference to the Court. After the advertisements are issued, the balance, if any, shall be returned to the petitioner.