1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.2478 OF 1998 Indseam Services Limited. ...Plaintiff. Vs. Kedia Distiliers Ltd. (in Lion.) through O.L., H.C., M.P. & Anr. ...Defendants. .... Mrs.Mohana Nair with Ms.Puja Acharekar i/b. M/s. JMB Partners for the Plaintiff. Mr.Debashish Mitra for the Official Liquidator. ..... CORAM : DR.D.Y.CHANDRACHUD, J. September 15, 2009. P.C. On 11th August 1993, the Plaintiff sanctioned to the First Defendant a Lease Finance Facility in the amount of Rs.20 lakhs on the terms and conditions set out in the sanction letter. A Lease Agreement was entered into on 10th September 1993 whereby the Plaintiff agreed to give on lease to the First Defendant, machinery of the value of Rs.11,83,259/-. The Second Defendant executed a personal guarantee dated 10th September 1993. 2 2. On 14th February 1994, the Plaintiff sanctioned to the First Defendant another Lease Finance Facility to the extent of Rs. 13.50 lakhs and Rs. 15.25 lakhs approximately pursuant to which a Lease Agreement dated 28th February 1994 was executed. The Second Defendant executed a personal guarantee dated 28th February 1994. 3, On 20th June 1994, the Plaintiff sanctioned to the First Defendant a further Lease Finance Facility in the amount of Rs.32 lakhs, in pursuance whereof, a Lease Agreement dated 28th September 1994 was entered into. The Second Defendant executed a personal guarantee dated 28th September 1994. 4. On 31st July 1995, the Plaintiff sanctioned to the First Defendant a bill discounting facility in the amount of Rs.21,10,300/-. A Bill of Exchange in the amount of Rs.21,10,300/- drawn on the First Defendant on 31st July 1995 was discounted by the Plaintiff. The bill was duly accepted by the First Defendant and was due for payment on 27th August 1995. 3 5. Under the first Lease Agreement, eleven overdue monthly instalments aggregating to Rs.5,17,165/- remained due on the date of the suit and the agreement expired on 9th September 1996. Under the Second Agreement, there were seventeen overdue monthly instalments aggregating to Rs.20,63,205/- and the agreement expired on 27th February 1997. Under the third Agreement, nine overdue instalments aggregating to Rs.32,75,928/- remained due on the date of the suit and the Lease Agreement expired on 27th September 1997. The Bill of Exchange was also not honoured on the due date. The First Defendant admitted its liability by a letter dated 4th September 1996 to pay lease rental. Several post dated cheques issued by the First Defendant were returned upon presentation. A letter of demand was addressed by the Plaintiff's Advocate on 29th September 1997. 6. The First Defendant was ordered to be wound up by an order passed by the Madhya Pradesh High Court. The Official Liquidator has been brought on record. This Court has been informed that leave under Section 446 of the Companies' Act, 1956 has been 4 obtained from the Madhya Pradesh High Court subject to the condition that the decree, if any, shall not be executed without the leave of the Madhya Pradesh High Court. 7. The Original First Defendant did not enter appearance despite service of writ of summons. No Written Statement was filed. The Official Liquidator has appeared in these proceedings. The Official Liquidator has submitted to the orders of the Court, subject to leave being taken for the execution of the decree that may be passed. The Second Defendant has also not entered appearance. In the absence of any Written Statement, the pleadings and the case of the Plaintiff have not been controverted. The Plaintiff has relied upon an affidavit of evidence of an officer conversant with the facts of the case and who has verified the correctness of what is stated therein. A compilation of the original documents was also tendered. The claim has been duly proved on the basis of the evidence on recored, particularly in the absence of contest. The Suit shall stand decreed in terms of prayer clauses (a) to(d) against the First Defendant and in 5 terms of prayer clauses (a) to (c ) against the Second Defendant with the modification that the Plaintiff would be entitled to interest at the rate of 9% per annum from the date of the suit, until payment or realization. However, as against the First Defendant which has been ordered to be wound up, the direction with regard to interest will be to the effect that interest shall be payable at the rate of 9% per annum upto the date of winding up, namely 27th January 2004 and thereafter, in the event that any surplus remains, interest will be admissible under Section 172 of the Companies' Court Rules. The Court Receiver shall continue to act as Receiver in execution. ......