IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA C.P.No.286 of 2009 M/s.The Bank of New York Mellon, London Branch, 40th Floor, One Canada Square, London, E14 5AL Rep. by its Constituted Attorney Mr.Navneet Singh .. Petitioner. ..vs.. M/s.Pyramid Saimira Theatre Ltd., "Temple Tower", C-I, II Floor, No.672, Anna Salai, Chennai .. Respondent. Company Petition filed under Section 433(1) (e) and (f), 434(1) (a) read with Section 439(1)(b) of the Companies Act, 1956. For Petitioner : Mr.R.Murari For Respondent : No appearance : Mr.M.Jayakumar Dy. Official Liquidator ***** ORDER The Bank of New York Mellon has filed this petition under Sections 433(1) (e) and (f), 434(1) (a) read with Section 439(1)(b) of the Companies Act, 1956, for winding up of the respondent company, i.e. M/s.Pyramid Saimira Theatre Limited, on its inability to pay the admitted liability. 2. On July 3, 2007, the respondent company entered into a trust deed with the petitioner, appointing the petitioner as trustee in respect of foreign currency convertible bonds. Thereafter, by way of a supplemental trust deed dated December 19, 2009, the conversion price was further revised to Rs.246.50, representing US$ 90 million. This was to carry interest at the rate of 7.75% interest redeemable in the year 2012. The liability stands admitted in the respondent company's annual report for the year 2007-2008. The interest on the amount was payable on 3rd January and 3rd July of each year. 3. The respondent company paid payments of interest on January 3, 2008, however, the company failed to pay the interest falling due in January 2009. However, it was subsequently paid on January 9, 2009 and January 13, 2009. The respondent company, thereafter, failed to pay the interest due and in terms of trust deed, the petitioner company issued default notice, therefore, claimed the amount be immediately payable in terms of the trust deed. 4. The respondent company was called upon to immediately pay the amount in any event within 21 days of receipt of notice. In the reply to the statutory notice, the respondent company admitted its liability to pay the interest to the bond holders as per the condition-4 of foreign currency convertible bonds. The respondent company, however, disputed the early redemption price, thus, disputing right of the petitioner to recall the amount deposited. The dispute was also raised that failure of payment of interest did not constitute 'Events of Default'. However, liability to pay interest was not disputed. 5. The respondent company, thereafter vide its letter dated July 2, 2009, admitted the following: (i)The Income Tax Department had attached the Respondent Company's Assets on December 04, 2008. (ii)Due to the said attachment by the Income Tax Department, the Respondent Company could pay only USD 146,983 before January 3, 2009 and the balance interest amount of USD 640,517 by January 13, 2009 for the interest due and payable to the Bondholders on January 3, 2009. (iii)The Respondent Company had moved the Hon'ble High Court of Madras and obtained a partial relief from the Hon'ble High Court of Madras vide its order dated April 30, 2009 against the order of attachment passed by the Income Tax Department. However, the Income Tax Department withdrew the attachments on the overdraft accounts in banks only on June 5, 2009. (iv)The attachment on receivables continues and the Income Tax Department has a first charge on the Respondent Company's credits in all bank accounts." 6. The respondent company sought grace period of 30 days to make payment of the interest due and also pay documentation and other charges. But the respondent company failed to fulfill its commitment. In view of default committed, second notice was issued calling upon the respondent company to pay the amount due within statutory period of 21 days. Again, liability to pay interest was not disputed. Thus, the petitioner claims that the respondent company is unable to pay its admitted liability. 7. It was also pleaded therein that the financial status of of the company shows that the company is insolvent. 8. On notice, the respondent appeared in Court. Learned counsel for the respondent company Mr.Sriram of Kailasam Associates, on 01.03.2011, withdrew from the case, by making statement that they were, no longer, representing for the respondent company. 9. This was in view of the fact that this Court, by way of interim measure, had appointed Provisional Liquidator, who took over charge of the respondent company and the company petition was ordered to be advertised in one English Daily "Business Line" and one Tamil Daily "Dina Thanthi", by fixing date of hearing as 11.04.2011. Gazette notification was also ordered. 10. Today, when the case came up for hearing, nobody has put in appearance on behalf of the respondent company nor counter has been filed. 11. For the reasons stated above, it is ordered that the respondent company i.e. M/s.Pyramid Saimira Theatre Limited, be wound up under the provisions of the Companies Act, 1956. The provisional liquidator is appointed as Liquidator of the company, who shall forthwith take charge of the properties and effects of the said company. The Official Liquidator shall cause a sealed copy of this order to be served on the respondent company by way of pre-paid registered post. The petitioner shall advertise within 15 days from this date a notice in the prescribed form of the making of this order in one issue (each of) English Daily "The Indian Express" and one Tamil Daily "Dina Thanthi". The petitioner shall also serve certified copy of this order on the Registrar of Companies within one month of passing of this order. The cost of the company petition be paid out of the assets of the company. 12. The petitioner shall deposit a sum of Rs.10,000/- (Rupees Ten Thousand only) as initial payment, within a period of two weeks of the receipt of certified copy of this order, with the Official Liquidator. Consequently, connected applications are closed. ar