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TMI Blog2002 (9) TMI 762X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusive advertising agency. Pursuant to the said letter of appointment, the petitioner provided advertising services to the respondent including advertising in Newspapers, Television, Radio, Creative Art Work, Film Production, Market Research and Conference, etc. to the satisfaction of the respondent. In respect of advertising services rendered to the respondent between October, 1994 and July, 1995 a sum of Rs. 74,79,213.81 as on 31-3-1996 was due and payable by the respondent. The respondent is also liable to pay interest from 1-4-1996 as per the bills raised by the petitioner. When the petitioner approached the respondent, they expressed their inability to make payments, however, agreed to discharge their liability through the mode of bills of exchange. Since the respondent failed to honour bills of exchange, the petitioner s bank refused to discount further bills of exchange accepted by the respondent. By letter dated 27-11-1995 the respondent admitted part of its liability to the extent of Rs. 60,58,282.95. The petitioner has filed a Civil Suit in C.S. No. 334 of 1996 on the file of the Original Side of this Court for recovery of the amount due to the petitioner and the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y mentioned that the activities will be carried on by the petitioner only with the written approval of the directors of the respondent company. The petitioner herein was appointed, as an advertising agent for Grundig Products. The respondent was not the beneficiary as alleged and it was only Grundig Electronics India Private Limited who were the beneficiaries for the services rendered by the petitioner. The petitioner herein has to work-out their remedies only in the said suit filed by them. 4. In the light of the above pleadings, I have heard Mr. A.L. Somayaji, learned senior counsel for the petitioning creditor and Mr. T.K. Bhaskar for respondent company as well as Mr. J. Nityanandam for Official Liquidator. 5. The only point for consideration in this company petition is whether the respondent company is to be wound up as claimed by the petitioner ? 6. The petitioning creditor has filed the above Company Petition against the respondent company mainly on the ground that the company is unable to pay its debts and it is just and equitable that the company should be wound up. It is the case of the petitioner that the respondent appointed the petitioner by its letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea taken in C.S. No. 334 of 1996 and the defence, of the respondent company therein. The petitioning creditor has filed the suit (C.S. 334 of 1996) against Grundig International Marketing and Sales, Germany as first respondent; Grundig Electronics India Private Limited, Madras-34 as second respondent; and Solidaire India Limited., Madras-20 as third respondent. The third defendant in that suit is the respondent in this Company Petition. In the plaint, the petitioner/plaintiff has stated that in the month of April, 1994 the third defendant represented to the plaintiff that it was the agent of the first defendant-company, the manufacturers of the world famous Grundig Televisions and other products, that it was acting on its own behalf as well as on behalf of the first defendant. It is the definite case of the plaintiff that the third defendant acted for itself and as the agent of the first defendant for all the suit transactions. As rightly argued by the learned counsel for the respondent, there is no proof or acceptable document in support of such claim in the company petition. In paragraph 18 of the plaint, it is stated that the third defendant company had an agreement with the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned therein was the amount due at that time namely 27-11-1995. By stretch of imagination could that letter be understood to be an admission on the part of this defendant....". 10. A perusal of the plaint averments clearly show that the plaintiff has laid the suit claim not only against Solidaire India Limited but also its principal namely Grundig International Marketing and Sales as well as Grundig Electronics India Private Limited. I have already referred to the specific stand taken in the written statement by the defendant/respondent in the company petition. All these averments lead to an irresistible conclusion that triable issues are involved and there is a bona fide dispute. In such a circumstance, as rightly contended by the learned counsel for the respondent, suit alone is the proper remedy and in the light of tendency of C.S. No. 334 of 1996, it is for the plaintiff to establish their right in the said suit. Though the learned senior counsel for the petitioner has very much relied on the admission of the respondent as evidenced in their letter dated 27-11-1995, even on 10-1-1997 the respondent through their counsel sent a reply denying all the allegations contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that even where the power to wind up exists, its exercise is governed by considerations of propriety. The Court may, if there are sufficient counter-balancing equitable grounds, deny an immediate winding-up order, or, in appropriate cases, even refuse it altogether in spite of the proved inability of a company to pay its debts. Exercise of such discretionary power must necessarily be governed by justice and equity. I am in respectful agreement with the view expressed by the learned Judge and the said conclusion is applicable to the case on hand. 13. It is also the definite case of the respondent that it acted only as an agent. If that is so, in view of section 230 of the Contract Act, the principal alone is liable, it is also relevant to note that in C.S. No. 334 of 1996 filed by the petitioner herein, the principal as well as the agent are parties. In such a circumstance, the petitioner has to establish their claim only in the suit. 14. In the light of what is stated above, I am satisfied that there is a bona fide dispute in relation to the claim made by the petitioner in the petition. In view of the pendency of C.S. No. 334 of 1996, it is a matter to be decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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