2009 (6) TMI 584 - HC - Companies Law

Winding-up - petition to the extent US 95,659.54 equivalent to ₹ 45,10,347.30 paise with interest at the rate of 9 per cent per annum from the date of winding up notice until payment is made - Held that - There is substance in the submissions of Mr. Mitra that the entire edifice upon which the company petition is sought to be founded is missing. The defence put forward by the company, in our opinion, does not fall within the realm of a sham or a bogus defence. It certainly cannot be defined as moonshine. Such a defence, therefore, cannot be ignored. Such being the position we are unable to hold that, there is a clear debt due and that the company is unable to pay the same. The principles to be followed by the company Court in examining the petition for winding up are well known and have been reiterated by the Supreme Court on numerous occasions. The debt under section 433 of the Companies Act must be a determined or a definite sum of money payable immediately or at a future date. We are informed that the financial position of the appellant is sound. Appeal allowed.

Issues Involved:
1. Validity of the lease agreement and subsequent amendments.
2. Authority of Sri Saileswar Ghosh to bind the company.
3. Existence and acceptance of invoices by the company.
4. Applicability of the principle of ostensible authority from Freeman & Lockyer's case.
5. Bona fide dispute of debt and defense by the company.

Issue-wise Detailed Analysis:

1. Validity of the Lease Agreement and Subsequent Amendments:
The petitioning creditor claimed that the company had agreed to lease Dry-van containers starting from 1-7-1997, with the terms recorded in a written agreement executed on 30-1-1998, and renewed over time. The company was alleged to have accepted invoices raised by the petitioner without objection. However, the company disputed the existence of such agreements, claiming that any signatures on behalf of the company were fraudulently obtained and denied any business transactions with the petitioner.

2. Authority of Sri Saileswar Ghosh to Bind the Company:
The petitioner asserted that Sri Saileswar Ghosh, who represented himself as a director, signed the agreements and acted on behalf of the company. The company, however, denied that Ghosh was ever a director or had the authority to bind the company. The learned Single Judge held that Ghosh acted with the company's knowledge, applying the principle from Freeman & Lockyer's case, which the appellate court later found inapplicable due to insufficient evidence of Ghosh's authority.

3. Existence and Acceptance of Invoices by the Company:
The petitioner claimed that the company accepted the invoices for lease rentals without objection, and a sum of US $95,659.54 was due. The company denied receiving or accepting any invoices, stating that invoices were raised on Astra Marine Pvt. Ltd. of Singapore, not on the company itself. The appellate court found the evidence presented by the petitioner insufficient to conclusively establish the company's acceptance of the invoices.

4. Applicability of the Principle of Ostensible Authority from Freeman & Lockyer's Case:
The learned Single Judge applied the principle from Freeman & Lockyer's case, which holds that a principal can be bound by the actions of an agent acting with ostensible authority. The appellate court, however, found that the facts of the case did not support the application of this principle. There was no clear evidence that Ghosh had the authority to act on behalf of the company or that the company had knowledge of his actions.

5. Bona Fide Dispute of Debt and Defense by the Company:
The company argued that the debt was bona fide disputed, and the defense was substantial, thus not warranting winding up. The appellate court agreed, noting that the defense was not sham or bogus and could not be ignored. The court referenced the Supreme Court's principles in Mediquip Systems (P.) Ltd. v. Proxima Medical System GmbH, emphasizing that a debt must be a determined or definite sum, and the company's inability to pay must be in a commercial sense.

Conclusion:
The appellate court found merit in the company's appeal, setting aside the learned Single Judge's judgment. The petitioner was advised to pursue normal legal remedies. The court directed the release of Rs. 4,50,000 with accrued interest to the appellant, denying the stay of the judgment's operation. The appeal was allowed, emphasizing the necessity of clear evidence and proper authority in binding a company to agreements and debts.

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