9911796707
|
Home
Issues Involved:
1. Winding-up petition 2. Claim of the petitioning creditor 3. Agreement for commission 4. Approval from the Reserve Bank of India (RBI) 5. Realisation of export proceeds 6. Completion of the contract 7. Statutory notice validity 8. Presently payable debt 9. International commercial transactions and public interest 10. Allegation of insolvency Detailed Analysis: 1. Winding-up Petition: The winding-up petition was presented on June 13, 1979. Notice was served on the company, which then filed an affidavit to show cause why the petition should not be admitted. The petitioning creditor, a foreign company, filed an affidavit-in-reply after several extensions. An injunction was issued against the petitioning creditor on January 21, 1980, preventing it from filing any suit or proceeding against the company until the disposal of the present application. 2. Claim of the Petitioning Creditor: The claim arises from an export contract for the supply of A.C.S.R. conductors by the company to the Pakistan Water & Power Development Authority (WAPDA). The transaction was routed through the petitioning creditor as an agent and involved Indian and Pakistani agents. The company submitted its offer on December 11, 1976, and the deal was concluded due to the efforts of the petitioning creditor's Pakistani agent, resulting in a purchase order from WAPDA on January 15, 1977, for a total value of $17,08,090.80. 3. Agreement for Commission: The company agreed to pay the petitioning creditor a commission of 2.75% of the F.O.B. value of the supplied quantity, subject to RBI approval and realization of export proceeds. This agreement was confirmed by the company in a letter dated January 22, 1977. Subsequent correspondence, including a letter dated April 29, 1978, indicated the company's acknowledgment of the commission amount and tentative dates for remittance, subject to RBI approval. 4. Approval from the Reserve Bank of India (RBI): The company was responsible for obtaining RBI approval for remitting the commission to the petitioning creditor. The company's failure to obtain this approval cannot be used as a defense to avoid payment. The court emphasized that the company cannot take advantage of its own default in not securing the necessary permission. 5. Realisation of Export Proceeds: The company realized the price of the goods supplied under the contract. Correspondence indicated that by mutual consent, the balance quantity of the contract was not delivered, and the contract was treated as concluded by partial performance. 6. Completion of the Contract: The contract was partially completed, and the remaining portion was mutually abandoned. Thus, the conditions for payment of the commission were considered fulfilled. 7. Statutory Notice Validity: The statutory notice under section 434 of the Companies Act, 1956, was deemed valid despite the claim being made in dollars. The equivalent amount in rupees could be easily determined using the prevailing exchange rate. 8. Presently Payable Debt: The debt was considered presently payable. The company's failure to obtain RBI approval does not negate the debt's validity. The court held that no one could take advantage of their own default, and the company's liability was clear from the correspondence. 9. International Commercial Transactions and Public Interest: The court highlighted the importance of upholding national prestige in international commercial transactions. The company's actions were seen as lacking commercial morality and infringing on international transaction norms. 10. Allegation of Insolvency: The winding-up petition alleged that the company was in insolvent circumstances, making it just and equitable to wind up the company. The company did not respond to the statutory notice, further supporting the allegation of insolvency. Conclusion: The court admitted the winding-up petition, directing advertisements to be published in specified newspapers and setting a future date for further proceedings. The company's defenses were found to be without merit, and the court emphasized the importance of maintaining integrity in international commercial transactions.
|
