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TMI Blog2011 (7) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of forfeiture of the Security deposit the said cannot be decided in this application and the parties will be entitled to take steps in accordance with law - C.P. NO. 99 OF 2004 - - - Dated:- 29-7-2011 - PATHERYA, J. S.N. Mukherjee, Ratnanko Banerjee, Amitava Deb and Kushal Poddar for the Petitioner. P.C. Sen, R.R. Sen, M.S. Tiwari and Ravindra Tiwari for the Respondent. JUDGMENT 1. This is an application filed under sections 433, 434 and 439 of the Companies Act, 1956 for winding up of ATN International Limited (Company). 2. The case of the petitioning Creditor is that for supply of Satellite service to the Company rent agreed between the parties was to be paid. A sum was also deposited on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security deposit. Although in the affidavit in opposition filed by the company it has been contended that the services rendered was not up to the mark this is not a point taken in reply to the notice issued under section 434 of the 1956 Act. No counter claim of 75,000 US dollar has been made nor has any proceeding been initiated by the company to dispute such forfeiture. Reliance is placed on [1993] BCLC 131 for the proposition that mere existence of cross claim is not a good reason to refuse payment. Reliance is placed on Haryana Telecom Ltd.'s case ( supra ) for the inapplicability of the laws of Singapore and the arbitration clause to winding up proceedings. For all the said reasons order as sought be passed. 3. Counsel for the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy for collecting a debt. For all the said reasons no order be passed on this application. 5. In reply Counsel for the petitioning creditor submits that there is no dispute regarding payment of the principal sum of US dollar 1,57,467.90 along with delayed payment interest which aggregates to the claim mentioned in the notice under section 434 of the Companies Act. The dispute is only in respect of the security deposit and forfeiture thereof. The sum of 1,57,467.90 US dollars is on account of security deposit of 75,000 US$ and 82,467.90 US dollars on account of rental. There has been default in payment of rentals and thereafter the proposal to make payment and in spite of such proposal no remittance was made, by the company. By virtue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The plea of arbitration clause which is sought to be relied on in the affidavit in opposition was not taken in the reply to the Notice issued under section 434 of the 1956 Act. No reference has been filed nor arbitration clause invoked. 9. In the e-mail of 17-7-2002 outstanding balance has been admitted and a payment schedule contemplated. On 18-7-2002 a confirmed payment schedule was sent to the petitioning creditor by the Company and in September, 2002 a statement of Account was sent by the Company to the Income-tax Department. Such statement was till June 2002 and showed a sum of US$ 82,467.90 payable by the Company to the petitioning creditor. 10. Therefore a sum of US$ 82,467.90 is due and payable to the petitioning cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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