2012 (6) TMI 150 - HC - Companies Law

Winding up - petitioning creditor entered into these agreements as the owner of vessels. The Indian company was the charterer. It appears that the petitioning creditor became entitled to demurrage. The parties agreed to pay demurrage but company did not paid full amount - company says that the power of attorney was required to be stamped under section 3(c) read with section 18 of the Indian Stamp Act, 1899. Since it was not properly stamped, the court should impound it under section 33 of the Act. Therefore, the winding up petition filed on the basis of such power of attorney was not admissible under section 35 of the said Act Held that - endorsement recognises it as stamp duty received by the State of Maharashtra. The payment is authenticated by a seal and the emblem of India. presumption of regularity of the Government actions unless the contrary is proved (see section 35 read with section 114 of the Indian Evidence Act, 1872). No evidence to rebut the presumption is on record. company is indebted to the petitioning creditor for a sum of US 300,000, company unable to pay said amount. winding up application is admitted.

Summary

Issues:
1. Winding up application by a Singaporean company against an Indian company for non-payment under charter parties.
2. Validity of power of attorney executed in Singapore for filing the winding up petition.

Analysis:
1. The petitioning creditor, a Singaporean company, filed a winding up application against an Indian company for non-payment under two charter parties dated September 29, 2009. The Indian company was in default of paying US$ 3,00,000 out of the agreed amount of US$ 6,00,000. The petitioning creditor issued a statutory notice on September 28, 2010, claiming the outstanding amount along with interest. The company admitted the facts in their reply email dated October 4, 2010, and did not contest the claim in the affidavit-in-opposition. The court found the company indebted to the petitioning creditor for US$ 300,000 with interest at 12% per annum from September 28, 2010.

2. The company raised a technical objection regarding the stamping of the power of attorney executed in Singapore for filing the winding up petition. The company's counsel argued that the power of attorney was not properly stamped under the Indian Stamp Act, 1899, making the petition inadmissible. However, the petitioning creditor's counsel produced a photocopy of the original power of attorney showing that stamp duty of Rs. 100 was paid on December 9, 2010, and authenticated by the State of Maharashtra. The court, relying on the Indian Evidence Act, 1872, held that there was no evidence to rebut the presumption of regularity in the stamping process. Consequently, the court found the power of attorney to be properly stamped and admissible, dismissing the company's defense on this ground.

In conclusion, the court admitted the winding up application, directed publication in specified newspapers, and ordered the company to pay the outstanding debt with interest. The court also granted a stay on advertisement publication for two weeks upon the company's request.