9911796707
TMI Blog2012 (6) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is filed under sections 433( e ), 434( i )( a ) and 439 ( i )( b ) of the Companies Act, 1956, read with Rule 95 of Companies Court Rules, 1959 seeking for winding up of the respondent-company for non-payment of its debts. 2. The petitioner-company was carrying on the business of forwarding and clearing consignments of air cargo. Originally, M/s. Bax Global India (P.) Ltd. was carrying on the said business. The said company came to be amalgamated with the petitioner-company as per the order dated 5-9-2007 passed by the Delhi High Court. In view of the said amalgamation all the assets and liabilities of M/s. Bax Global India (P.) Ltd., came to be transferred to the petitioner-company. The petitioner-company continues to carry on the business of forwarding and clearing consignments of air cargo. 3. The respondent-company is carrying on business of manufacturing readymade garments, spinning, knitting, weaving or manufacturing of wool or woollen products or dealing in cotton and other fibrous substances and preparations thereof and dyeing or colouring of any of the said substances. The respondent-company also imports the yarn and dress materials and prepares readymade ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the correct address of the respondent-company, the respondent did not receive the said notice and the same was returned with the postal endorsement as 'not claimed'. Hence, the service of notice was held sufficient to the respondent-company. In spite of the same, the respondent-company failed to pay the said amount. 5. The respondent-company has failed to discharge its liability towards the creditor in the normal and ordinary course of business and is commercially insolvent. The respondent-company has also lost substratum and is unable to discharge the debts. The position of the respondent-company is also very bad and it is not in a position to pay the dues of the petitioner-company. In view of that, the petitioner filed the above petition seeking for a direction to appoint the official liquidator attached to this Court and to pay the dues of the petitioner-company. 6. The respondent entered appearance and filed their statement of objections. In the objections, the respondent has contended that the petition filed for winding up of the respondent-company is not maintainable either in law or on facts. The respondent is not the debtor and there is no contract between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the dresses according to the specified designs, they will manufacture and hand over to the H M Hennes Mauritz AB, they in turn dispatch to their customers. There was an agreement between the petitioner and H M Hennes Mauritz AB and there is no contract between the petitioner and the respondent with regard to clearing and forwarding the merchandize garments from India to its various destinations worldwide. For the export of materials in fact the details of the production, shipping place and delivery etc., were to be fed in by the respondent in the e-booking module, a software package of H M Hennes Mauritz AB. The e-booking module clearly has the logo, name and insignia of the petitioner on the top right hand side which clearly shows that the petitioner is a Nominated clearing and forwarding agent of H M Hennes Mauritz AB and not of the respondent. 10. Since there is no contract or agreement between the petitioner and the respondent, there is no obligation on the part of the respondent to settle the dues. The petitioner instead of raising invoice against the H M Hennes Mauritz AB raised an invoice against the respondent. In fact, some times on the instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company. Since there is no contract between the parties, the question of paying the dues does not arise. Further, it is averred that the respondent has been doing garment business from the year 2001 and exporting and selling the products both in India and overseas, the respondent-company is financially solvent, is a going concern and financially sound in position and is able to pay all its legitimate debts. As per the balance sheet that net worth for the year ending 31-3-2008 is Rs. 63,28,868 and the net current assets is Rs. 2,95,27,776. The petitioner-company instead of raising the invoice before the H M Hennes Mauritz AB raised the bill against the respondent and in order to pressurize the respondent, filed this petition for winding up. Since the respondent is not due any money to the petitioner, the question of paying the debts does not arise hence sought for dismissal of the winding up petition. 13. The petitioner filed their rejoinder to the objection statement filed by the respondent contending that the petitioner-company has been nominated as Cargo and Forwarding Agents by H M Hennes Mauritz AB vide letter dated 15-1-2007 and as per the instructions received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Info Drive Systems SDN BHD [2010] 10 SCC 553/ 104 SCL 367 /8 taxmann.com 1 (SC) and contended that when there is a bona fide dispute regarding the debt and defense is substantial one, the Court, cannot pass the order of winding up of the respondent-company and sought for dismissal of the petition. 16. I have carefully considered the arguments addressed by the parties and perused the relevant records. 17. The records clearly disclose that the petitioner is a company carrying on business of forwarding and clearing consignment of air cargo. As and when cargo was entrusted to the petitioner, the petitioner will book the space for the cargo that are to be Voyaged in a ship and getting cargo customs cleared and forward the same for Voyage to its destination. The petitioner is a reputed logistics company. The petitioner-company has taken the goods of the respondent-company for Voyage to various countries of the world and delivered the materials in safe and sound Condition without any adverse remarks and performed their contractual obligation to the satisfaction of the companies. The petitioner-company sent the invoice to the respondent-company for payment. However, responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have admitted in then rejoinder that they are nominated as cargo and forwarding agent by H M Hennes Mauritz AB. However, they claim that H M Hennes Mauritz AB had instructed the respondent to pay the amount towards Air Shipments. Hence, it is the responsibility of the respondent to pay the amount. There is also no agreement between the respondent as well as H M Hennes Mauritz AB regarding payment of freight charges. The agreement is that the respondent will stitch the garments as per the specifications of H M Hennes Mauritz AB and supply the same to them and it is their responsibility to dispatch the goods to their customers. In the absence of any contract between the petitioner as well as the respondent regarding payment of dues of H M Hennes Mauritz AB, the petitioner cannot enforce the dues of some other company on the respondent. The records clearly disclose that at no point of time, the respondent appointed or nominated the petitioner as cargo and forwarding agent. In the absence of the same, the petitioner cannot claim any amount against the respondent. The defense of the respondent is well founded that for somebody's dues, the respondent cannot be asked t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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