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TMI Blog2012 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of Kakira Sugar Works (1985) Ltd., ("Kakira") under which the Respondent sold and supplied machinery and equipment. The case of the Appellant is that it was providing regular freight forwarding services to Kakira. Kakira had suggested that the Respondent use the services of the Appellant for shipment of the goods from India to Uganda. The Respondent requested that Shark Logistics Pvt. Ltd. ("Shark Logistics") be appointed as its agent. According to the Appellant, the Respondent requested the Appellant's office in Switzerland to raise invoices on Shark Logistics for expediency, to which the Appellant agreed. Accordingly, invoices in the sum of U.S. $ 438,377.34 were raised upon Shark Logistics for goods shipped and delivered to Kakira ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, in paragraph 11(i), it was sought to be explained that this acknowledgement of payment due was based on bills received and authorised for payment by Shark Logistics. If the relationship between the Respondent and Shark Logistics was on a principal to principal basis, there would be no occasion for the latter to authorise payment by the Respondent to the Appellant; (iv) The clear acknowledgement of liability by the Respondent in the e-mail dated 26 October 2007 must be coupled with the fact that at no stage did the Respondent raise a defence to the effect that it had no privity of contract with the Appellant. If there was no privity of contract, there would be no occasion for the Respondent to address a communication to the Appellant ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 159 Comp. Cas. 369/104 SCL 367/8 taxmann.com 1 a dispute is substantial and genuine if it is bona fide and "not spurious, speculative, illusory or misconceived". Yet, as the Supreme Court has held the grounds of dispute must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. The Company Court wields a measure of discretion, but it is settled that the procedure of a Petition for winding up should not be allowed to be used as a means of forcing the Company to pay a debt which is bona fide disputed. 8. In the present case, it is on the basis of the settled exposition of the law that the facts would have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court). The e-mail is in the following terms: "RE: Payment to Spedag East Africa Dear Sir, With reference to the below mail, please be informed that as per our record, the balance payment is Amount U.S.$206,403.67 not U.S.D 397,143.67. We will remit Amount: U.S.$206,403.67 as per our record. Thanks & Regards, Brijen Parikh." [Emphasis supplied] The e-mail contains a clear admission of liability on the part of the Respondent. The admission of liability is clearly of the payment due to the Appellant because the subject of the e-mail is not an amount which is due in the abstract, but a specified amount (US$ 206,403.67) which was due and owing to the Appellant. The Respondent clearly stated that it would remit that amount "as per our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and payable, according to its books of account, was only U.S.$ 206,403.67 and hence, a larger claim of the Appellant in the amount of U.S.$ 453,838.05 against the Company was denied. The acknowledgement dated 26 October 2007 was sought to be explained by stating that it was based on bills received by and authorised for payment by Shark Logistics. If as is now submitted before the Court, the dealings between the Respondent and Shark Logistics were on a principal to principal basis, there would have been no occasion for Shark Logistics to authorise the payment of the aforesaid sum to the Appellant. 10. Considering the matter in its entirety and after having examined the documents upon which the rival submissions have been founded, we are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablish its bona fides. Such an opportunity should, in our view, be granted in the interests of justice in order to obviate the consequence of the admission of a Company Petition for winding up. The amount upon deposit would lie to the credit of the suit and abide by such further order that may be passed by the Learned Single Judge at the hearing of the Summons for Judgment. The Court has been informed that the Summons for Judgment has been adjourned by the Learned Single Judge on the Original Side, in view of the admission of this appeal. Parties would now be at liberty to move the Learned trial judge for disposal of the Summons for Judgment. 12. Accordingly and, for the reasons indicated earlier, we pass the following order : (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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