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TMI Blog1999 (8) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... he supply of various items of costume jewellery, which was duly accepted by the petitioner. According to the letter dated 15-4-1997, some specified jewellery items were to be supplied to the petitioner within 90 days, i.e., on or before 19-7-1997. The respondent was to be paid a commission of US $ 58,000. 2. It is the case of the petitioner that the respondent was paid the commission amount. It is also mentioned in the petition that the petitioner sought an extension of time for supplying the goods vide letter dated 4-7-1997 and the respondent company had agreed to extend the time up to 6-8-1997 and informed the respondent on telephone. Thereafter, the petitioner was ready with the consignment for dispatch within a week after seekin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent refused to admit having received the total commission of Rs. 5,25,000 for which they had issued receipt. They also denied that the said goods could be inspected by one Mr. Naresh Baluni according to the agreement. 5. The respondent replied to the said notice which was duly received by the petitioner company but they chose not to give any reply. In these circumstances, according to the petitioner, the respondent company is indebted to the petitioner for a sum of Rs. 5,25,000 along with interest at the rate of 24 per cent. 6. It is also mentioned that according to the petitioner, the respondent company is using the modus operandi of collecting the commission in advance by inducing innocent exporters by promising orders in cap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner for supply of costume jewellery, there came into existence a distinct and independent contract between the petitioner and the buyer. One of the terms of the letter of credit was, that delivery had to be effected within 90 days including negotiation time. The petitioner failed to make the said delivery within the stipulated period and the letter of credit expired. 9. The letter dated 4-7-1997 was written by the petitioner to the buyer F.M. Noordin Co. which reads as under : "527/97-98 4-7-1997. To M/s. F.M. Noordin and Co., 11, Collyer Quay, The Arcadehex, 06-04, Raffles Place, Singapore-049317. Sub: L/C No. SIN/29697/97 DTD 29-4-1997. Dear Sir, This has reference to the above mentioned letter of credit opene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Amir is required. Hence kindly arrange to depute Mr. Aamir for inspection at the earliest. Further we had requested you for 30 days, extension of delivery as well as negotiation period through your Indian Agent which was agreed upon by him. Kindly amend the said L/C accordingly so that material could be despatched at the earliest. Kindly revert back your reply through fax immediately. Our Fax No. is 0091113542488. Thanking you, For TWINKLE EXPORTS. (Nemi Khandelwal)" 12. The learned counsel for the respondent has also placed reliance on the letter sent to the petitioner by the respondent on 6-8-1997. The letter reads as under: "6th August, 1997 M/s. Twinkle Exports, New Delhi. Attn.: Mr. Nerni Khandelwal Re.: L/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the terms of letter of credit. The petitioner was fully aware that the inspection had to be carried out only by Mr. Aamir Hatim Nakhoda because the petitioner himself had written a letter to the respondent on 2-8-1997 reproduced in the preceding paragraphs. 17. The learned counsel for the respondent has placed reliance on a judgment of 1965, ie., Amalgamated Commercial Traders ( P. ) Ltd. v. A. C.K. Krishnaswami[l965] 35 Comp. Cas. 456 (SC). The relevant portion reads as under: "It is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to approach is the civil court. In summary proceedings such as proceedings for winding up a company, a detailed investigation and adjudication of the dispute should be avoided." (p. 136) 20. The counsel for the respondent also placed reliance on the judgment of the Punjab and Haryana High Court, i.e., Malhotra Steel Syndicate v. Punjab Chemi-Plants Ltd. [1989] 65 Comp. Cas. 546. In this judgment the Court observed that if the Company Court comes to the conclusion that the debt is bona fide disputed by the company against whom the winding up petition has been filed, the winding up petition will not be the appropriate remedy and the petitioner has to be relegated to a civil suit. 21. In the instant case it is clearly established ..... X X X X Extracts X X X X X X X X Extracts X X X X
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