9911796707
TMI Blog2001 (1) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... ny incorporated under the laws of Singapore and the respondent is a company incorporated under the Act. The appellant claims to have sold and supplied equipment of the value of US Dollors 67,636 to the respondent under invoice No. 70025485, dated 3-4-1998, in pursuance of respondent s purchase order dated 24-12-1997. The appellant alleges that the respondent has taken delivery of the goods supplied under the said invoice, but has failed to pay the amount due inspite of the repeated demands. 3. In response to the letter dated 20-3-1999 sent by the appellant demanding payment, the respondent sent the following reply dated 24-3-1999. "We acknowledge the receipt of your letter March 3, 1999 asking us to release payment of USD 67,636.00 by 20th of March, 1999. In this connection, please note that as per our books there is no amount outstanding for payment to Synopsys. We have also informed your local associates D gipro accordingly." 4. According to the appellant, the liability has been untenably denied. It is alleged that the respondent had taken delivery of equipment supplied under two earlier invoices dated 3-2-1998 and 18-2-1998 and paid for them. On the other hand, in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under which the appellant had supplied the equipment, and the reply wherein the respondent had repudiated the liability stating that its books of account did not show any amounts outstanding to the appellant. Let us consider whether the documents produced by the appellant and the averments in the petition establish any liability on the respondent, at least prima facie. 7. The first document relied on by the appellant is the purchase order dated 24-11-1997 said to have been issued by the respondent. The said purchase order dated 24-12-1997 was placed on Synopsys Inc., at California USA and not the appellant ["Synopsys (Singapore) (P.) Ltd., Singapore"]. The purchase order clearly states that the amount had to be billed to "GEC Plessey Semiconductors, United Kingdom" and supplies should be effected to "GPS Usha (P.) Ltd., Bangalore" (Respondent). Thus, the purchase order makes it clear that payment is to be made by a UK concern and not the respondent. 8. The next document relied on is copy of the Invoice dated 3-4-1998. The invoice is not of the appellant, but of "Synopsys Inc., Mountain view, California" on whom the order was placed. The said invoice also makes it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be dismissed or rejected at the stage of admission, without ordering notice of the petition to the respondent-company, is to say the least, is startling. The Company Court choosing one of three courses stated in rule 96 would arise only when the Court is satisfied that the petition has to be entertained on account of existence of a prima facie case. In a creditor s petition for winding up under section 433( e ), this would mean that the petition and annexures thereto should disclose prima facie, the existence of a relationship of creditor and debtor between the petitioner and respondent- company, existence of a debt in excess of Rs. 500, and non-payment thereof after service of a notice in the manner prescribed in section 434. Where the documents produced, and petition averments do not disclose any liability on the part of the respondent towards the petitioner, even prima facie, and there is neither any averment nor any document to show that respondent-company is in financial difficulties and the documents produced show a clear denial of liability by the respondent, the Court has the discretion, and in fact a duty, to reject the petition for winding up at the threshol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isement; or ( iii ) admit the petition, fix the date of hearing and direct advertisement and service of petition on the company and other persons, if any, as decided by the Court. It is needless to say that even where a prima facie case is made out, the Court should normally adopt the first course. Only is very clear and strong cases second course is adopted. The third course should be adopted in very exceptional circumstances as advertisement of a winding up petition may many a time sound the death knell of the company. 15. The decision is Cotton Corpn. of India Ltd. s case ( supra ) relied on by the appellant does not support the proposition that having regard to the provision of rule 96, the Company Court has no discretion but to order notice of the petition for winding up to the respondent-company. The question whether a petition could be rejected at the threshold if it does not have any merit, was not considered by the Supreme Court. The Court only pointed out that neither admission nor advertisement automatically followed presentation of a petition for winding up; and rule 96 conferred power on the Company Court to issue pre-admission notice to the company instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
