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TMI Blog2012 (6) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be a moonshine or sham. However following the principle that "detailed investigation and adjudication of the dispute should be avoided", present petition and pending application are dismissed with liberty to the petitioner to raise its claim if not earlier raised in the already pending civil suit between the parties. - CO. PETITION NO. 360 OF 2008, CO. APPLICATION NO. 1378 OF 2008 - - - Dated:- 21-5-2012 - MANMOHAN, J. V.P. Singh and S.K. Agarwal for the Petitioner. Girdhar Govind and Gopashree for the Respondent. JUDGMENT 1. Present winding up petition has been filed under Section 433( e ) read with Sections 434 and 439 of the Companies Act, 1956 (hereinafter referred to as 'the Act') stating that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire Transfer service US$ 300,000 in the account of the respondent being the consideration for the proposed stage shows in which Mr. Vivek Oberoi was to participate. 6. In the petition, it is contended that as Mr. Vivek Oberoi did not participate in the said stage shows, the respondent was duty bound to refund the advance received by it along with compensation on account of huge losses suffered by the petitioner. It is further stated that as despite exchange of number of e-mails respondent did not repay the advance received by it, petitioner sent a legal notice dated 18th January, 2006 and as there was no response to the same, petitioner filed the present winding up petition. 7. Mr. V.P. Singh, learned senior counsel for petitioner s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est him to send the original notarized to Yashi Multi Media? Thank you. Best regards, Mahesh Uberoi." (emphasis supplied) 8. On the other hand, Mr. Girdhar Govind, learned counsel for respondent submitted that the present winding petition at the instance of the petitioner was not maintainable as according to the petitioner itself monies had been advanced to the respondent by Mr. Manu Mehta and not by the petitioner firm. 9. Mr. Girdhar Govind also submitted that there was no privity of contract between the petitioner and respondent inasmuch as Mr. Farhath Hussain was neither an employee nor authorised representative or agent of the respondent. He emphatically denied that Mr. Farhath Hussain was authorised by the respondent to enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had been remitted by the petitioner's brother, but on his request, the said amount had been refunded by the petitioner. Thus according to him, the present petition was maintainable. 15. Having heard the parties and on a perusal of the paper book, this Court is of the opinion that it must first inquire as to whether Mr. Farhath Hussain was an authorised representative/agent of the respondent. For deciding this issue, the Court has to examine the full import of the two letters both dated 29th January, 2003 which were relied upon by the petitioner. The said two letters are reproduced herein below:- "Jan 29th, 2003 To Whomsoever It May Concern This is to confirm that Mr. Vivek Oberoi will be willing to participate in the shows organ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act between the petitioner and the respondent is sketchy and does not state that Mr. Farhath Hussain was acting as an agent of the respondent. The said letter is reproduced herein below:- "Farhath Hussain 31 Longwood Gardens, Ilford, Essex 1G5 OEB United Kingdom To, Mr. Deepak Mehta, Mehta Brothers Entertainments, San Francisco, Date : Feb 1, 2003 Re: Vivek Show for San Francisco in Sept 03. Dear Deepak, Please transfer $300,000.00 (Dollars Three Hundred Thousand) to YASHI MULTIMEDIA PVT. LTD. for the above mentioned show. I am also faxing to you the confirmation letter of Vivek Oberoi, Yashi Multimedia Pvt. Ltd., and the bank details. Thanking you, Yours Sincerely, Sd/- Farhath Hussain" 18. Consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his issue that will work for all parties. We will continue discussing the details of your proposal amongst ourselves and third parties who are also interested in shows with Mr. Oberoi. One question. Does your proposal require that Deepak agree to take on 10 shows, or would 5 be sufficient?" In the meantime, Deepak informs me that he has an understanding with Mr. Oberoi that he will be paid the $36,000 by May 27th. Payment of this amount in good faith will go a long way towards reaching an ultimate resolution and we look forward to receiving it. In the meantime, I will continue working with Deepak on your proposal and will respond soon. 'From : [email protected] [mailto: [email protected]] Sent : Friday, May 25, 2007 7:15 AM To : Kevin H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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