9911796707
TMI Blog2012 (9) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... tics were on the instructions of the Respondent it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalent to U.S.$ 206,403.67 to the credit of the Summary Suit which has been instituted in this Court by the Appellant, to establish its bona fides. - 266 OF 2011 - - - Dated:- 2-8-2012 - DR. D.Y. CHANDRACHUD AND R.D. DHANUKA, JJ. Pradeep Sancheti and S.L. Shah for the Appellant. Gautam Ankhad and Tushar Gujjar for the Respondent. JUDGMENT Dr. D.Y. Chandrachud, J. This appeal arises from an order of the Learned Company Judge dated 11 February 2011, by which a Petition for winding up under Section 433(e) of the Companies' Act, 1956 was dismissed. 2. The Respondent entered into an agreement on 10 February 2006 with a Company based in Uganda, by the 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 Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 admitting a liability to make payment in the amount of U.S.$ 206,403.67. In these circumstances, it has been urged that the Learned Single Judge has ex-facie erred in coming to the conclusion that a bona fide dispute arises. In order to allow an opportunity to the Company to establish its bona fides, an order of deposit of at least the admitted amount of U.S.$ 206,403.67 to the credit of the Summary Suit which has been filed by the Appellant and which is pending in this Court, would have been appropriate. 5. On the other hand, it has been urged on behalf of the Respondent that: (i) The Respondent is a solvent Company which has a bona fide dispute based on an absence of privity of contract with the Appellant and that consequently, the Petition for winding up would not be maintainable; (ii) The Appellant had raised invoices upon Shark Logistics and had a contract of 10 February 2006 with that Company which was not disclosed; (iii) The Bill of Lading was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is was followed by a further communication dated 19 October 2007 rectifying the amount claimed to U.S.$ 397,443.67. On 26 October 2007, Brijen Parikh, who was a partner in the erstwhile partnership and is admittedly a Director of the Respondent, addressed an e-mail to the Appellant. The subject in the e-mail is stated in the reference as "Payment to Spedag East Africa" (the Appellant before the 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 record". This admission of liability displac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant was thoroughly lacking in bona fides and was "spurious, speculative, illusory and misconceived" as explained in the judgment of the Supreme Court in IBA Health (I) (P) Ltd. ( supra ). The defence clearly runs in the teeth of a clear admission of liability contained in the Respondent's e-mail dated 26 October 2007. This, as noted earlier, must also be weighed together with other contemporaneous material on record. That includes the fact that there was no denial of liability when the Appellant addressed a communication to the Respondent on 21 April 2008 specifically stating that the invoices which were initially raised on Shark Logistics were on the instructions of the Respondent. Admittedly, there was no reply to the statutory notice for winding up. The Learned Single Judge was, with respect, in error in accepting the defence that there was no privity of contract between the Appellant and the Respondent and in holding that a bona fide dispute arose. 11. In these circumstances, an order for the admission of the Petition for winding up would have been warranted. However, it would be appropriate to furnish an opportunity to the Respondent to deposit an amount equivalen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
