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8. The Respondent has instituted a suit against the Appellant on the Original Side for the recovery of the outstanding dues under the two series of bonds. In that suit, an application under Order 38 Rule 5 was moved in which on 14 February 2012, the Learned Single Judge inter alia restrained the Appellant from disposing of, alienating or transferring its interests in its Cloud Computing Business. In that ad-interim order, the Learned Single Judge noted that the value of the computing business as computed in a report of Ernst and Young was Rs.598 crores. By an order dated 1 March 2012, a Learned Single Judge declined to grant a copy of the valuation report to the VBC 9/16 appl344.13-2.9 Respondent. The Division Bench in appeal, by an order dated 27 March 2012 recorded that there was no dispute about the fact that no payment has been made by the Appellant herein on the date on which the bonds fell due for repayment or redemption. The Division Bench in the course of its judgment observed as follows:

On 3 May 2012, the Division Bench in an appeal against an order of the Learned Single Judge confining the ad-interim order on the application under Order 38 Rule 5 only to the grant of injunctive relief noted that whereas the Ernst and Young report had valued the assets at Rs.598 crores, the Respondent had produced a valuation report estimating the enterprise value to be between Rs.198 crores and Rs.239 crores. The Division Bench noted the submission of the Respondent that Ernst and Young's report had been prepared only on the basis of information furnished by the Appellant herein and on the basis of the accounts for the period ending 30 September 2011 VBC 10/16 appl344.13-2.9 and the Company did not furnish to the valuers accounts for the quarter ending 31 December 2011. Hence, the submission of the Respondent was that since the Cloud Computing Business remained to be the only business of the Appellant from 27 September 2011, the true material for making the correct valuation of the Cloud Computing Business ought to have been, but was not furnished to the valuer. In this background, the Division Bench directed the Appellant to furnish to Ernst and Young a copy of the report subsequently obtained by the Respondent and issued directions for the submission of a further report about the valuation of the Cloud Computing Business. In an order dated 9 July 2012, the Division Bench noted that upon reconsidering the value of the Cloud Computing Business, Ernst and Young in their valuation report dated 3 July 2012 had valued the enterprise value at between Rs.152 crores and Rs.211 crores. In view of the subsequent report, the proceedings were remanded back to the Learned Single Judge for reconsideration. By an order dated 9 October 2012, the Learned Single Judge noted the undertaking of the Appellant not to dispose of its assets and disposed of the application for ad-interim relief accordingly. This aspect has a serious bearing on the conduct of the Appellant and its lack of bona fides.

12. The Respondent applied before the Learned Single Judge for the appointment of a provisional liquidator. The Learned Single Judge has held, and in our view with justification, that if a Provisional Liquidator is not appointed, the promoters/directors of the Company who have been motivated by personal gain and not by the interests of the shareholders, creditors or workers may bring the business of the Company to a stand still by siphoning of its balance assets. This apprehension cannot be regarded as unfounded having regard to the course of events noted in the earlier part of the present judgment. However, it was urged on behalf of the Appellant before the Learned Single Judge that since the Company is engaged in a sensitive business, of Cloud Computing, the office of the Liquidator may not be equipped to deal with the complex handling of such a business. The Learned Single Judge hence directed that an administrator should be appointed. The Learned Single Judge has provided adequate safeguards by directing that the administrator will ensure that the day to day functioning of the Company is not hampered. The appointment of the administrator has been made, in these circumstances, with a view to safeguard the interests of the shareholders, VBC 15/16 appl344.13-2.9 creditors and the workers. Mr. R.A. Dada, Learned Senior Counsel for workers submitted that forty per cent of the turnover is paid towards the salaries of the employees and many of the employees were engaged in both software and hardware business. As the Learned Single Judge noted, having regard to the track record of the promoters/directors, it was necessary in the interests of employees themselves that an administrator should be appointed in the absence of which, in all likelihood, the business and assets would be wasted and the business would be brought to a standstill. The Learned Company Judge has acted within jurisdiction in issuing this direction.