(Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) 1. The original petitioner-opponent herein Vanguard Textiles Ltd. (VTL) approached learned Company Judge by filling a petition under section 433 read with section 434 of the Indian Companies Act, 1956, praying for winding up of the appellant company. It is the case of original petitioner that the appellant is indebted in respect of the dues payable towards price of goods supplied to one Rosebys Operations Limited, a foreign subsidiary company of the appellant. It is also the case that the debt in question is covered under a deed of guarantee executed by the appellant company on behalf of its above named subsidiary Rosebys. It is the further case that the High Court of Justice, Queen’s Bench, Manchester, United Kingdom has decreed the said debt.
1.1 By oral order dated 26.08.2009, learned company judge admitted the winding up petition, and in the order issued the following operative direction :
“As the defence of the respondent Company is found to be not bonafide, before this Court passes the further order for issuing advertisement in accordance with law, by way of an opportunity to be given to the respondent Company for showing its ability to pay the debt and also to show the complications which may arise on account of the advertisement upon its commercial solvency or insolvency as the case may be, the respondent is directed to deposit the amount of Rs.89,19,840/- being equivalent Indian rupees at the rate of Rs.80/- per pound of £ 48,343.13 is concerned, no order for directing to deposit is made at this stage. Such amount be deposited with this Court without (sic-within) two weeks on or before 15th September, 2009.”
1.2 The present appeal questions the legality of above order dated 26.08.2009. The aggrieved appellant contends that it has got a substantive and bonafide dispute as to the debt claimed and therefore, the winding up petition itself is not maintainable.
2. The factual profile emerging from the record of the appeal is set out as follows. The original petitioner Vanguard Textiles Ltd. (VTL) (referred to as ‘the original petitioner' or ‘VTL’ hereinafter) claims to be a company incorporated under the prevalent laws of United Kingdom having its registered office at Charles House, Ordsal Lane , Salford, Manchester MS, United Kingdom, approached the Company Court suggesting that as on the date of statutory notice, the appellant was required to pay to VTL, a principal sum of £ 1,59,842.34 being equivalent to approximately Rs. 1,12,48,806/-, and also that the company has become liable to pay further principal sum of £ 62,125.97 equivalent to approximately Rs. 43,72,076/- under three more invoices upon expiry of payment credit period. The petitioner claimed payment of the total amount with interest at the rate of 12% from 2.1.2009.
2.1 The case of the VTL is that it is a supplier of textile goods to the home furnishing industry. During the year 2008, it had supplied curtains and cushions, to one Rosebys Operations Ltd (hereinafter referred to as 'Rosebys') and that the said supply is comprised in total eight invoices. The Rosebys is a company based in United Kingdom. It is averred that “to the best of the petitioner's knowledge, Rosebys is a 100% subsidiary of the appellant-Company”. It is further stated that the eight invoices covered the period of supply between 26.6.2008 and 17.9.2008. According to VTL, the invoices reflected the terms of payment, whereunder the amount was payable after 90 days from the date of respective invoices. According to VTL, the Rosebys has accepted all these invoices without protest.
2.2 It is the case that the appellant-Company had executed a deed of guarantee dated 14.7.2008 guaranteeing unconditionally and irrevocably the payment to the winding-up petitioner VTL, of all monies on demand due from said subsidiary Rosebys, in respect of goods supplied by it to the Rosebys. The case is further put up that under the laws of United Kingdom, the Rosebys became insolvent and on 20.09.2008 went into administration. On the said date, Rosebys was liable to pay total amount of £ 1,09,883.97 to VTL being the amount due under three out of eight invoices in question.
2.3 It is further stated that the appellant company committed the breach of guarantee, requiring the original petitioner VTL to institute a suit on 20.10.2008 against the company in High Court of Justice, Queen’s Bench, Manchester, United Kingdom (hereinafter referred to as ‘the UK Court), for recovery of the amount with interest at the rate of 8%. According to the original petitioner, the summons of the UK Court was served on the appellant and certificate of service dated 28.10.2008 reflected such service. As the company did not appear, the judgment was passed directing the company to pay to original petitioner VTL £ 1,10,558.21 and £ 940/- towards cost totalling £ 1,11,498.21 forthwith. It is pertinent to notice that learned Company Judge directed to deposit the amount as directed by the Foreign Court as aforesaid in the order while admitting the winding up petition.
2.4 The correspondence which was ensued between the parties in the subject matter is summarized as under.
(i) The original petitioner-VTL sent an E-mail massage dated 26.09.2008, communicating that the Rosebys Operation Ltd. (hereinafter mentioned as ‘the Rosebys’) has been placed under administration. The VTL expressed intention to enforce the guarantee.
(ii) By letter dated 2.10.2008, the VTL raised a formal demand of the sum of £ 220,354.7 based on the deed of guarantee.
(iii) The appellant by communication dated 17.11.2008 sent through its solicitors, inter-alia denied the liability stating that the appellant was not privy to the transaction. It further asked the attornies of VTL to provide copies of contract between VTL and Rosebys, sales orders, delivery receipts, invoices, related documents and other correspondence.
(iv) On 21.11.2008 a reminder to pay the debt arising from the deed of guarantee appears to have been sent on behalf of VTL to the appellant.
(v) By communication dated 27.11.2008 (a) guarantee dated 14.7.2008 (b) statement of account, invoices and dispatch notes, (c) copy of judgment dated 20.11.2008 of the High Court of England were sent. It was stated that the process to get the UK Court judgment registered in India was being undertaken.
(vi) The statutory notice was issued on 9.12.2008 by the winding up petitioner.
(vii) The appellant replied to the said notice on 7.1.2009.
2.5 In letter dated 27.11.2008 aforementioned, the VTL referred to the suit instituted before the UK Court. It was prayed on such footing that the appellant company has neglected to pay the debt and is liable to be would up under the provisions of the Companies Act, 1956.
2.6 The relevant paragraphs from the said notice are reproduced for ready reference hereunder.
“4. Our clients, by dated October 13,2008, invoked the said Guarantee executed by you and demanded payment of the said amount of 1,09,883.97/- from you as guarantor. However you failed and neglected to pay the said sum or any part thereof to our clients. Hence, you have committed breach of the said Guarantee.
5. Our clients therefore initiated Claim No.8MA91372 against you in the Hon'ble High Court of Justice, Queen’s Bench Division, Manchester District Registry, United Kingdom for recovery of the said amount of 1,09,883.97/- along with interest at the rate of 8% per annum from the date of the said Claim. On November 20,2008, the Hon'ble High Court of Justice passed a Judgment directing you to pay to our clients 1,10,558.21 for dabt and interest to the date of Judgment and 940.00 for costs. You were therefore directed to pay a total amount of 1,11,498.21 to our clients forthwith. You have failed and neglected to made payment of the 1,11,498.21 to our clients despite the fact that there is a judgment passed against you.
6. ……..
7. ……..
8. ……..
9. In the circumstances, we are instructed by our clients to call upon you, which we hereby do, to pay to our clients, the aforesaid sum of £ 1,59,842.34 (Pounds One Lakh fifty Nine Thousand Eight Hundread fourty two and Cents Thirty Four only) alongwith only interest due thereon at the rate of 12% per annum from November 22, 2008 till payment/realisation thereof, within twenty one (21) days of the receipt of this notice by you, failing which our clients will have no alternative but to adopt appropriate legal proceedings against you, as they may be advised, including but not limited to initiating winding up proceedings against you, which shall be entirely at your risk as to costs and consequences thereof. Kindly treat this as a notice as Sections 433 and 434 of the Companies Act,. 1956.”
2.7 The appellant has resisted the winding up petition raising contentions in its affidavit-in-reply inter-alia that (i) the company is a going concern having turn-over of Rs. 11,568.90 milion having its manufacturing units at different places in Gujarat, and also in Madurai as well as in Tamilnadu. It provides employment to number of persons. (ii) The company has not lost its substratum and is capable to discharge its dues and has the net worth of Rs. 42798.17 mn (iii) the gurantee on the basis of which the dues are claimed is not approved by Reserve Bank of India as required under the Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2004; (iv) the VTL has already lodged its claim against principal debtor Rosebys in the administration proceedings in the United Kingdom; (v) the present appellant in these proceedings is sought to be sued in capacity of a guarantor only (vi) judgment by the Court of Queens Bench is an ex- parte judgment and not enforceable in India, and in any case the said judgment can be enforced under the laws of the country concerned.
3. This Court heard learned Senior counsel Mr. Mihir Thakore with learned Senior Counsel Shri R. S. Sanjanwala, and learned advocate Mr. Vimal Patel for the respondent-the original petitioner, at length.
4. Learned counsel submitted at the outset that learned Company Judge has directed the deposit of the amount as per the decree of UK Court. It is submitted that the said judgment of the foreign court being a default judgment, is not enforceable in view of provisions of section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC'). He invited attention to clause (b) and clause (d) thereof. He submits that the deed of guarantee was relied on by the UK Court and the ex parte decree was passed. It is next contended by learned senior counsel that the guarantee in question stands in contravention of Regulation No.5 and Regulation No.6 of the Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations 2004 and submitted that the direct investment outside India was prohibited except in accordance with said Regulations and with prior approval of Reserve Bank of India. It is submitted that the deed of guarantee in question was admittedly not approved by the Reserve Bank of India. Learned senior counsel further submitted as such the guarantee in question does not stand the test of sub clause (c) of Regulation 6 (2) of the Regulations and therefore the guarantee itself was void.
4.1 He contended that learned Company Judge misdirected himself on one hand in believing the case of the original petitioner with reference to the deed of guarantee by accepting that the sum was payable thereunder and on the other hand ultimately directing to deposit the amount as per the decree of the UK court. He submitted that case of the original petitioner lacks in clarity and it is not certain whether the original petitioner has rested his case on the deed of guarantee or has based the claim for debt due under the judgment and decree of the UK Court. In order to buttress the contention, he highlighted the aspects that there was no proper service of summons by the UK Court. By referring to the dates and events it is submitted by him that the entire alleged transaction resulting into a default judgment by the UK court ex-parte delivered, entertains serious doubts.
4.2 On the basis of all aforesaid contentions, the learned senior counsel finally submitted that in the minimum the appellant company has a bonafide defence to successfully resist the winding up petition. According to his submission there is no neglect to pay for the purpose of section 433 and 434 of the Companies Act, 1956.
4.3 Learned counsel in support of his arguments, relied on the following decisions :
(i) International Woolen Mills vs. M/s Standard Wool (U.K.) Ltd. (AIR 2001 SC 2134].
(ii) Madhusudan Gordhandas & Co. vs. Madhu Woolen Industries Pvt. Ltd. (AIR 1971 SC 2600)
(iii) IBA Health (India) Pvt. Ltd. v/s Info-Drive Systems Sdn. Bhd. [(2010) 10 SCC 553].
4.4 On the other hand, learned advocate for the opponent – original petitioner submitted that the deed of guarantee is executed by the appellant and the execution thereof is not disputed. He submitted that as the appellant company having guaranteed the payment of dues of Rosebys under the said guarantee deed, the appellant is bound by the same. It was submitted that the obligation to pay the debt would arise out of the deed of guarantee and it is a contractual obligation to be discharged by the appellant company and therefore the contention that the deed is not approved by the Reserve Bank of India is of no avail. It was submitted that what is disputed is not the debt but the enforceability of the guarantee deed, and such a contention, according to submission of learned advocate for the original petitioner, cannot become a bonafide dispute. It is submitted that in the facts and circumstances, the defence is not substantial, but a sham one.
4.5 Learned advocate for the original petitioner relied on the following clauses of the deed of guarantee.
“1.1 Definitions In this Deed :
“Guaranteed obligations means all money now or hereafter due, owing or incurred to the Supplier by the Obligor in respect of any goods ordered and delivered by the Supplier to the Obligor after the date of this Deed (but always excluding goods ordered for which supply is ultimately not take or refused by the Obligor even if the request for such goods was made after the Deed and such goods have been returned to the Suppler in an unused and undamaged condition suitable for re-sale) in any currency or currencies whether as principal or surety together with all interest accruing on such moneys and all costs, charges and expenses incurred by the Supplier in respect of such moneys.
2.1 Guarantee Subject to Clause 2.4 below, the Guarantor irrevocably and unconditionally undertakes with the Supplier and its successors, transferees and assigns and due and punctual payment to the Supplier on demand of all or any of the Guaranteed Obligations.
2.2 Immediate recourse The Guarantor waives any right it may have of first requiring the Supplier to proceed against or enforce any other rights or Security or claim payment from any person before claiming from the Guarantor under this Deed. This waiver applies irrespective of any law or any provision of any agreement or other instrument to the contrary.
2.4 Guarantee Limitations This guarantee shall apply to all goods delivered by the Supplier to the Obligor on or after 20 June 2008 together with applying to all goods ordered and delivered from the date of this guarantee. This guarantee shall not apply to goods ordered but not delivered to the Obligor, provided that the Guarantor serves notice on the Supplier prior to delivery of such goods to the Obligors premises.
4.6. It was next contended that the guarantee payment under the deed of guarantee also came to be decreed by the UK Court and that the said judgment is against the principal debtor and further that thereby the claim of payment essentially arises from the guarantee deed and is enforceable. It was submitted that the appellant being a guarantor, his liability is coextensive and in that way also the debt was undisputed and enforceable. It was submitted that there was a neglect to pay the debt and the debt having not been paid even after the statutory notice, the winding up petition was maintainable and rightly admitted by the learned company judge as per provisions of section 433 (e) read with section 434 of the Act.
4.7. Learned advocate for the respondent relied on a decision of this Court in Boi Finance Ltd. vs. Arvin Oxygen Pvt. Ltd.[2006 (134) Com. Cases 626] for the proposition that in that case a lease agreement was entered into between the petitioner and the respondent company and the winding up petition based on that was held maintainable and it was proved on the basis of the lease agreement that the company had failed and neglected to pay. Learned advocate further relied on the observations made in paragraph 11 of the judgment. By referring to decision in Enernorth Industries Inc. vs. VBC Ferro Alloys Ltd. [2006 (133) CC 130 (AP)], it was submitted that there was no bar in pursuing two remedies simultaneously.
4.8. He next relied on Eurometals Ltd. vs. Alluminium Cables and Conductors (UP) Pvt. Ltd. [1985 53 CC (Cal.)] and in KTS (Singapur) Plc Ltd. vs. Associated Forest Products (pvt.) Ltd. [1996 (85) CC 199 (Cal.)] to submit that even if payment of debt was subject to approval by some authority under the law, once the contract was finalised between the parties, the debt could be enforced from such contractual obligation and the non-approval factor could not be an impeding factor. Another decision of Nova Scotia vs. RPG Transmission Ltd. [2006 (133) CC 173 (Delhi)] was relied on to indicate the scope of section 433 and 434 of the Act. On basis of Essar Steel Ltd. vs. Gramercy Emerging Market Fund being OJ Appeal No. 21 of 2002 decided on 17.10.2002 by Division Bench of this Court, it was submitted that the relief in the inter-partes enforcement action and in the winding petition were different in their nature. It was submitted that creditors are free to initiate the proceedings by way of winding up petition when the debt is due and payable .
5. Having closely scrutinized the facts and material on record and having considered the rival contentions, in order to appreciate the controversy and issues involved, the nature and effect of the documents/instruments on which the winding petition is sought to be founded may now be considered. The main planks of the original petitioner VTL are UK Court judgment and the deed of guarantee. The petitioner has relied on the said Foreign Judgment delivered with reference to the deed of guarantee in question. It has relied on the deed of guarantee independently as well. It was argued in that context by learned senior counsel for the company that the original petitioner was not sure as to which was the real basis for instituting the winding up petition and that there was a convenient make-shift on its part to assert the claim somehow and anyhow. Be that as it may.
5.1 . A perusal of copy of judgment and decree of UK Court dated 20.11.2008 which is on record of the petition, unmistakably shows that it was an ex parte decree. At the top, it is mentioned “Judgment for claimant (in default)”. The claim No. is 8MA91372 and the claimant’s name shown is Vanguard Textiles Ltd. whereas the defendant is indicated as Ghcl Ltd.. The Judgment states, “You have not replied to the claim form.
It is therefore ordered that you must pay the claimant £ 110558.21 for debt (and interest to date of judgment) and £ 940.00 for costs.
You must pay the claimant a total of £ 111,498.21 forthwith.”
5.2. It is manifest from the above that the said judgment and decree of the UK Court was not on merits and was passed in absence of the defendant. Section 13 of CPC speaks about conclusiveness of a Foreign Judgment. The provisions of sec. 13 which comes into play in the context of above, reads as under :
“13. ‘ When foreign judgment not conclusive -
A foreign judgment shall be conclusive as to any matter thereby directly adjudicating upon between the same parties or between parties under whom they or any of them claim litigating under the same title except -
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are apposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any 0law in force in India.”
5.3. Clause (b) of Sec. 13 CPC says that a foreign Judgment shall not be conclusive where it has not been given on merits. Under clause (d), where the proceeding in which the judgment was obtained are opposed to natural justice, shall not be treated as conclusive. Clause (f) was also preferred into service. The effect of clause (f) is discussed in the succeeding paragraphs.
5.4 Section 13 of CPC in a way encapsulates the doctrine of public policy with regard to in particular the enforcement of foreign judgments in India. A foreign judgment will not be conclusive if it falls within the ambit of any of the clause of clauses (a) to (f) of section 13. The provision philosophies also the concept of sovereignty of Indian laws in the field of International Law application. In the facts of the present case, it is seen that the UK Court judgment relied on for the purpose of the debt claimed as due in the winding up petition cannot be treated as conclusive in view of clear application of clause (b) and clause (d) of section 13. Conceptually and in their scope, clause (b) and clause (d) are interactive. What emanates from the provisions of section 13 is that on the basis of a foreign judgment and decree covered under any of the clauses, a suit in an Indian court shall not lie to enforce the dues or a claim flowing.
5.5 The Apex Court in Smt. Satya vs. Teja Singh [AIR 1975 SC 105] held, ”the validity of a foreign judgment rendered in a civil proceeding must be determined in India on the terms of Section 13, Civil P.C. If the judgment falls under any of the clauses of Section 13 it will cease to be conclusive as to any matter thereby adjudicated upon and will be open to collateral attack on the grounds mentioned in Section 13. It is beside the point that the validity of the judgment is questioned in a criminal court and not in a civil court. Thus, a foreign decree of divorce obtained by the husband from the Nevada Court in USA in absentum of the wife without her submitting to its jurisdiction will not be valid and binding on a criminal court in proceedings for maintenance under Section 488, Criminal P.C.”
5.6 Therefore, in light of observations made in Smt. Satya (supra) and the position of law emerging from other decisions referred to, whatever may be the kind of jurisdiction in which the Foreign Judgment is a subject matter, if any of the clauses of section 13 of the CPC applies to the Foreign Judgment, it is not to be treated as conclusive. Thus, it cannot be gainsaid that under the company jurisdictions also, the principles of sec. 13 will apply. The scope and ambit of the provisions are relevant in the adjudication of issues in winding up petitioner as well.
5.6.1 Therefore, it is clear that the above mentioned UK Court judgment being ex parte and being not on merits, the same stands covered under clause (b) and clause (d) respectively. The same is not conclusive and do not have any binding effect in the Courts in India. If a person wants to file civil suit on the basis of said UK Judgment in a Court in India, it is unlikely that such suit will be decreed in view of provisions of section 13 of the CPC as already stated hereinbefore, is based on a dictum of public policy. Therefore, if suit is incompetent on the basis of said UK Judgment, the winding up petition can hardly be maintained.
5.7 In International Woolen Mills (supra) the Supreme Court considered the issue of executability of a foreign judgment with reference to section 13 (b) read with section 44 (A) CPC, in which the respondent had filed an Execution Proceedings before the court of Civil Judge (Senior Division) in India on the basis of judgment and decree of the Central London County Court. The appellant of that case prayed for dismissal of the application on the ground that the judgment and decree of the London Court was not on merits and was passed in absence of the appellant. The question was addressed and answered by the Supreme Court by observing as under :
“In support of the contention that the above mentioned decree is on merits reliance has been placed upon the case of Sheikh Abdul Rahim alias S. A. Rahim v. Mohamed Din reported in AIR 1943 Cal 42. In this case it has been held by the Calcutta High Court that a person asserting that the judgment was not on merits because no evidence was given must prove the same as there is a presumption in Section 114 of the Evidence Act that judicial acts have been regularly performed. On this principle the Calcutta High Court has held that even though a decree was given ex parte the same must be presumed to be on merits. In our view the law laid down in this case cannot be said to be the correct law. Section 114 merely raises the presumption, under Illustration (e) thereof, that judicial acts have been regularly performed. To say that a decree has been passed regularly is completely different from saying that the decree has been passed on merits. An ex parte decree passed without consideration of merits may be decree passed regular if permitted by the rules of that Court. Such a decree would be valid in that country in which it is passed unless set aside by a Court of appeal. However, even though it may be a valid and enforceable decree in that country, it would not be enforceable in India if it has not been passed on merits. Therefore for a decision on the question whether a decree has been passed on merits or not, the presumption under Section 114 would be of no help at all. It must be mentioned that in support of submission that it must be presumed that all formalities were complied with and the decree passed regularly reliance was also placed on cases of Krishna Kumari v. State of Haryana reported in AIR 1999 SC 854 : (1998 AIR SCW 3958) and The Commr. of Income-tax, A.P. v. M. Chandra Sekhar @page-SC2139 reported in AIR 1985 SC 114 : (1985 Tax LR 497). In our view these authorities are of no help in deciding the question under consideration. Even if we presume that all formalities were complied with and Decree was passed regularly it still would not lead to the conclusion that it was passed on merits.”
(para 17) (emphasis supplied)
5.8 The Supreme Court In Vishwanath vs. Abdul Wajid ( AIR 1963 SC 1) observed with reference clause (d) of the section 13 of the CPC that the plea that a foreign judgment is contrary to natural justice has to be considered in the light of statutory law of India and there is nothing in section 13 which warrants the interpretation that at a plea that a foreign judgment to natural justice is admissible only if the parties setting up the plea is not duly served, or has not been given an opportunity of hearing. In Gurdas Mann & Ors. vs. Mohinder Singh Brar (AIR 1993 P&H 92], it was held that a decree of Foreign Court passed ex parte merely on pleadings of the plaintiff where defendant chose not to appear and no oral or documentary evidence was produced, it is not a decree on merits and hence can not be executed in view of section 13(b) of the CPC.
5.9 The nature and effect of the guarantee deed dated 14.07.2008, even when same is taken as an independent basis for claiming dues in a a winding-up petition, it is not in dispute that the guarantee in question was subject to approval of Reserve Bank of India under the Foreign Exchange Management Regulations 2004, which are statutory regulations framed under section 6(3)(a) and section 47 the Foreign Exchange Management Act, 1999. Regulation 5 and Regulation 6 which are relevant in this regard are extracted herein, “5. Prohibition on Direct Investment outside India Save as otherwise provided in the Act, rules or regulations made or directions issued thereunder, or with prior approval of the Reserve Bank,
(1) no person resident in India shall make any direct investment outside India; and
(2) no Indian party shall make any direct investment in a foreign entity engaged in real estate business or banking business.
6. Permission for Direct Investment in certain cases
(1) Subject to the conditions specified in sub-regulation (2), (and Regulation 7 in case investment in financial services sector) an Indian party may make direct investment in a Joint Venture or Wholly Owned Subsidiary outside India.
(2) (i) The total financial commitment of the Indian party in Joint Ventures/Wholly Owned Subsidiaries shall not exceed 100% of the net worth of the Indian Party as on the date of the last audited balance sheet;
Explanation: - For the purpose of the limit of 100% of the net worth the following shall be reckoned, namely:
(a) cash remittance by market purchase and /or equivalent rupee investments in case of Nepal and Bhutan
(b) capitalisation of export proceeds and other dues and entitlements as mentioned in Regulation 11;
(c) fifty per cent of the value of guarantees issued by the Indian party to or on behalf of the joint venture company or wholly owned subsidiary.
(d) investment in agricultural operations through overseas offices or directly
(e) External Commercial Borrowing in conformity with other parameters of the ECB guidelines Notwithstanding anything contained in these Regulations investment in Pakistan shall not be permitted.”
5.10 Regulation 5 prohibits any person resident in India or any Indian party from making any direct investment outside India, whereas Regulation 6 permits such direct investment in certain cases subject to the conditions specified in sub regulation (2). Sub regulation (2) inter-alia provides that the total financial commitment of Indian party in joint ventures/wholly owned subsidiaries shall not exceed 100% of the net worth of the Indian Party. The explanation to sub regulation (2) explains the formula to reckon the limit of 100% of the net worth. In sub clause (c) it is inter-alia stated that it shall comprise of 50% of the value of the guarantees issued by the Indian party to on or behalf of the joint venture company or wholly owned subsidiary. It was therefore rightly submitted in the facts of the case that guarantee which guaranteed 100% payment on behalf of foreign subsidiary was prohibited by virtue of the said provision in the regulation and that therefore it was a void guarantee.
5.11 The subject matter was clarified in the master circular dated 1.7.2008 on the subject of “Direct Investment by Residents in Joint Venture (JV) / wholly owned subsidiary (WOS) abroad". The relevant clarification is in section B under the title Direct Investment Outside India, to which learned senior counsel drew attention of the Court for explaining the import of Regulation 6 of the Regulations. It is useful to reproduce the said clarification.
“(1). In terms of Regulation 6 of the Notification, an Indian party has been permitted to make investment in overseas Joint Ventures (JV) / Wholly Owned Subsidiaries (WOS), not exceeding 400 per cent of the net worth of the Indian party as on the date of the last audited balance sheet.
(2). The ceiling of 400 per cent of net worth will not be applicable where the investment is made out of balances held in Exchange Earners' Foreign Currency account of the Indian party or out of funds raised through ADRs/GDRs. The Indian party should approach an Authorised Dealer Category - I bank with an application in Form ODI and prescribed enclosures / documents for effecting remittances towards such investments.
(3). Such overseas investments will include contribution to the capital of the overseas JV / WOS, loan granted to the JV / WOS, and 100 per cent of guarantees issued to or on behalf of the JV/WOS. The investments are subject to the following conditions:
a) The Indian entity may extend loan / guarantee to an overseas concern only in which it has equity participation. Indian entities may offer any form of guarantee - corporate or personal / primary or collateral / guarantee by the promoter company / guarantee by group company, sister concern or associate company in India; provided that
i) All financial commitments including all forms of guarantees are within the overall ceiling prescribed for overseas investment by the Indian party i.e. currently within 400 per cent of the net worth of the Indian party,
ii) No guarantee is 'open ended' i.e. the amount of the guarantee should be specified upfront, and
iii) As in the case of corporate guarantees, all guarantees are required to be reported to Reserve Bank, in Form ODI-Part II. Guarantees issued by banks in India in favour of WOSs / JVs outside India, would be outside this ceiling and would be subject to prudential norms issued by Reserve Bank from time to time.”
5.12 In view of above, the deed of guarantee relied on by VTL is not approved by the Reserve Bank of India. Not only that, in its nature, it is open ended guarantee in favour of a foreign company, which is prohibited in terms of the Regulation 6 above. It is in this context that clause (f) of section 13 of CPC gets attracted, when it provides that a foreign judgment can not be a conclusive judgment where it sustained a claim founded on breach of any law in force in India. What follows is that what is discussed above and what is true for the UK Judgment in terms of its enforceability at law, it is equally true for the deed of guarantee dated 14.07.2008. Either of them independently or taken together in their nature and effect are the documents, which prima facie are not enforceable in law to get the debt claimed thereby or guaranteed thereunder even in a civil proceedings. By no stretch of logic of law, therefore, a winding up petition can rest or can be maintained thereon.
6. At this stage, certain other baffling aspects emerging from the facts and the record may be noticed.
6.1.1 Firstly, debt claimed by the winding up petition is shown to have arisen out of 8 invoices, which are the only documents forthcoming to indicate that the goods namely curtains and cushion were supplied by VTL to Rosebys. It defies comprehension that specially the international transactions of purchase and sale are not preceded by any formal purchase orders, which is supposed to be the usual practice even in respect of normal trade transaction.
6.1.2 Secondly, the invoices comprised the period from 26.6.2008 to 17.09.2008 during which time 8 invoices are issued in a row. One struggles to readily believe as to how the supply of goods comprises in the part 8 invoices and the date of execution of deed of guarantee bear a close nexus in terms of time.
6.1.3 Thirdly, the suit before the English Court was instituted on 20.10.2008 and shown to have been decreed on 20.11.2008. It has a closeness in time to the date 20.09.2008 when the Roseby went into administration.
6.1.4 Fourthly, the judgment and decree was ex-parte and the service of summons was claimed to have been effected at the address of appellant company which is of United Kindgom, eventhough it is born out from the record that address of the appellant in India was available with the VTL-
plaintiff of the suit before the UK Court. But, at that address the summons of English Court was not sought to be served.
6.1.5 Fifthly, as far as the service of summons of the said suit is concerned, learned senior counsel for the appellant-company raised serious doubt by submitting from the record that the only verification for service of summons available is the certificate of service which states that date of service is deemed to be 3rd November, 2008. the date of certificate appears to be 28th October, 2008 and the same is shown to have been certified by Helen Cathenine Brown mentioning that said person was a partner.
6.2 It prima facie does appear that the record lacks a convincing proof about the actual service of summons. However, the issue of validity of service of summons, need not be gone into. Because, even without gone into it, from the manner of service of summons as canvassed by the learned senior counsel, the effect of clause (c) of section 13 of CPC is further emphasised in as much as the doubts entertainable about the validity of service of summons adds to the feature already obtained that the judgment of the UK Court is opposed to natural justice. On the basis of above aspects of the matter, one may view the whole transaction to be under cloud as to its genuineness itself. But these aspects are mentioned herein by this Court for the purpose only to indicate that they further weaken the case of the original petitioner, and make the defence of the appellant stronger.
6.3. It is well settled that the proceedings of winding up is not a recovery proceeding. Once it is demonstrated that the debt is subject to a bonafide dispute, the court will not order for winding up. The principles in this regard are elucidated in Madhusudan Gordhandas (supra).
“ Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The Court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contented that no price had been agreed upon and the sum demanded by the creditor was unreasonable (See London and Paris Banking Corporation, (1874) 19 Eq. 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See Re. Brighton Club and Norfolk Hotel Co. Ltd., (1865) 35 Beav. 204).
( para 20) “ Where the debt is undisputed, the Court will not act upon a defence that the company has the ability to pay the company chooses not to pay that particular debt (See Re. A company 94 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantify the debt precisely (See Re. Tweeds Garages Ltd., 1962 Ch. 406). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends.”
( para 21) (emphasis supplied) 6.4 What may be treated as substantial and genuine dispute is explained by the Supreme Court in IBA Health India Ltd. (supra) in the following words :
“The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bona fide disputed debt.”
6.5. It was observed that when the company has bonafide dispute petitioner can not be regarded as a creditor of the company. It was held that once the said position is established, there can not be neglect to pay within the meaning of section 433(1)(a), nor the deeming provision under section 434(1)(a) of the Act would come into play.
7. In the above conspectus of factual and legal position, it is the only conclusion that the dispute raised by the appellant company in respect of payability of debt claimed, raises a substantial and a bonafide dispute. Taking either with reference to the UK Court Judgment or on the basis of deed of guarantee, the dispute raised constitutes a valid defence to successfully dislodge the winding up petition.
8. In view of the above discussion and reasons, evidently, the appellant company has been able to raise a bonafide dispute and substantial defence. That being so, it cannot be said that it has failed or neglect to pay the dues claimed by the respondent.
9. The winding up petition having been found to be devoid of merits, company petition No. 20 of 2009 itself stands dismissed.
10. The appeal is allowed accordingly.
[RAVI R. TRIPATHI, J.] [N.V.ANJARIA, J.] cmjoshi