9911796707
TMI Blog1988 (3) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... S $1,06,825, the remaining being interest. The respondent company wanted the petitioners to dry dock a vessel, Discaria Harvest, to carry out repairs. Estimates were prepared on March 22, 1986, amounting to US $ 5,97,658. However, the respondent company indicated that they were not in a position to carry out the repairs for that value and that they would be content to carry out such repairs so as to maintain the class of the vessel as a result whereof it was agreed that the repairs of the value of US $ 1,51,000 be carried out and accordingly repairs were done in April, 1986. The invoice dated April 26, 1986, speaks of repairs being carried out worth US $ 1,51,000. Despite the repairs, no payment was forthcoming. Several promises were held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further shows that yet another remission of US $ 1,000 was made. By the telex dated May 14, 1986, the respondent company while seeking reduction prayed for rescheduling the payment of the invoice value on making a reference that the respondent company had been placed in some hopeless situation and faced the problem of leakage of the ammonia cargo as a result of which they are black listed in Gulf ports. The petitioners accepted the schedule of payment as suggested in four installments, each of US $ 35,625, the first to be paid on July 25, 1986, followed by payment every quarter thereafter. However, even before the payment of the first installment fell due, by the telex of July 14, 1986, the respondent company held out to the petitioners th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rohan, to the petitioners for dry docking and repairs and they disputed their liability to pay for the repairs. Having found that no money was forthcoming from the respondent company, the petitioners instituted a suit on the Original Side of the Bombay High Court, being Summary Suit No. 379 of 1987 on February 10, 1987. It is equally indisputable that a motion for attachment before judgment, viz., Shanta Rohan, was made. The respondent company succeeded in obtaining leave to defend that suit and equally clear from the order made on September 10, 1987, that the motion for attachment before judgment was dismissed. In the light of these facts, circumstances and correspondence, it is urged by learned counsel for the petitioners that at no stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argued that if the petitioners were to be blamed for bad workmanship in respect of Discaria Harvest, in April, 1986, the respondent company would not have entrusted their other vessel, Shanta Rohan, in June, 1986, and this being the telltale in the matter, there is nothing bona fide on the part of the respondent company. This petition is being vehemently opposed. Shri M. S. Usgaonkar, learned counsel appearing for them in the first instance, mentions that in a winding up petition, a petitioner must first establish bona fides and when the petitioner fails, the petition must be dismissed even at the threshold Despite knowing that the petitioners had to recover a large amount of money, counsel points out that the petitioners filed that suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the foreign port that the port authorities have black-listed the respondent company and, therefore, the fact remains that works were not carried out according to the requirement and, therefore, the claim of the respondent company cannot be labelled as not genuine. The second aspect raised is that the relief valves have lifted at 4 bar pressure instead of 15 bar pressure and this was again against the requirement. Having regard to the correspondence made by the captain of the ship and its chief engineer, a prima facie case that no adequate repairs had been carried out is made and, therefore, the respondent company were forced to carry out repairs at a huge cost of Rs. 21 lakhs and hence no want of bona fides can be attributed to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1987, and it is only vehemently disputed when that suit was filed relating to recovery of dues in respect of Shanta Rohan. Prior to that, the correspondence reveals that the respondents wanted only time to pay. What is more, they sought instalments and a reschedule of the payments from time to time. The further fact remains that the petitioners were forced to file that suit because Shanta Rohan is owned by the respondent company whereas Discaria Harvest does not belong to them. Even while arguments were going on, Mr. Usgaonkar was unable to dispute seriously the claim of the petitioners and the emphasis was that the counter-claim of the respondent company is far in excess of the claim of the petitioners. I am also unable to accept that me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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