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TMI Blog2013 (8) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... of substantial and genuine and not an ingenious method invented by it to deprive the creditor of its just an honest entitlement - Winding up petition was not a legitimate means to seek enforcement of a debt which was genuinely and bona fide disputed by the respondent – Costs were ordered to be paid to the Defendant – Decided against petitioner. - Co. P. No. 106 of 2010 - - - Dated:- 7-6-2013 - Aravind Kumar, J. For the Appellant : B.N. Prakash. For the Respondent : Manoj Kumar, C.M. Desai and Arvind C. Desai. ORDER:- Petitioner is seeking for winding up of the respondent company contending inter alia that respondent company is indebted to the petitioner-company in a sum of Rs. 2,04,82,067.08 ps. towards demurrage charges from 29.07.2009 as per the particulars of claim made in Annexure-K-1. 2. I have heard the arguments of Sri. B.N. Prakash, learned counsel appearing for petitioner and Sri. Manoj Kumar, learned counsel appearing on behalf of Sri. C.M. Desai for respondent. Perused the petition and annexures filed thereto as also statement of objections filed by respondent. 3. The sum and substance of the claim of the petitioner is that during July 2009 its v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations to the respondent company in terms of sourcing, shipment, logistics, remittance of sale consideration etc. It is also stated that the responsibility of remittance of sale consideration in respect of said sale rested with FMPL/FEIPL as per back to back contract entered into by the respondent company with them and these two companies failed to remit the sale consideration to the respondent company against the letter of credit payments and as such there is a breach of contractual obligations by them. It is also contended that overseas buyers along with FMPL/FEIPL had gone back on their commitment to make payments to respondent company. It is further contended that respondent company having made payment to the overseas sellers and they having received the amounts through letter of credit, by opening banks, respondent became the absolute owner of the cargo and it was holding original Bills of Lading duly endorsed in its favour. Respondent company by their mails have stated that they were the absolute owners of the cargo holding original Bills of Lading and have requested for waiver of demurrage and other charges. 4. Amongst other contentions/grounds urged in the petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to forego $ 4,47,090.91 discharged amount due and payable by respondent company to petitioner and as such petitioner has claimed demurrages outstanding in US $ 4,47,090.91 with respect of 196 containers and other charges as enumerated in paragraph 7(v). It is contended by petitioner that in all petitioner is entitled for a total sum of 4,52,942.66 US $ equivalent to Rs. 2,04,82,067.08 from the respondent with interest at 18% from 29.07.2009 till payment and as such a statutory notice came to be issued on 08.04.2010 as per Annexure-J-2 which was duly received by respondent and prior to it, a notice dated 17.03.2010 as per Annexure-J-1 had also been issued and despite receipt of such notice neither no reply was given nor demand came to be complied by respondent and as such petitioner contends that respondent company is liable to be wound-up as it is unable to pay its debt and it has become commercially insolvent. On these grounds petitioner has prayed for order of winding up of respondent-company under section 433(e) of the Companies Act be passed as it is just and equitable. It is also contended that respondent company has admitted its liability and it has failed to make good the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ethod invented by it to deprive the creditor of its just an honest entitlement. Thus the respondent has to establish that creditors debt would fall within the four corners of "bona fide dispute" this court would dismiss the petition leaving open all the contentions of the creditor to be urged and established in a competent forum. Winding up petition is not a legitimate means to seek enforcement of a debt which is genuinely and bona fide disputed by the respondent. The company petition cannot be used as a lever or to exercise pressure on the respondent company to cough up its alleged dues which is surrounded with suspicion and bona fide dispute arising thereunder in respect of such claims. 7. Having heard the .learned advocates appearing for the parties and on perusal of the averments made in the petition, documents appended to the claim petition and contentions raised in the statement of objections it would emerge that there was no privity of contract between petitioner and respondent. Neither the petitioner has acted at the behest and instance of the respondent for shipping the cargo in question and being stored at Hutchinson Terminal, Busan Port, Korea nor the petitioner compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad idem. 10. Petitioner has carried the cargo in its vessel which had been booked by shippers namely Asia Metals and Commodities Pvt. Ltd. Singapore, Al Mustaqbal Metals and American Metal Management Inc., and the importers to whom cargo was to be delivered by petitioner i.e., Mirae Metals Company Limited, have not taken delivery of same at the terminal port on account of consignee not taking delivery of the material by itself would not entitle the petitioner-company to stake a claim against respondent when there is no contract between them. In fact respondent having made an attempt to stake its claim over the cargo in question has miserably failed on two fronts: (1) neither did it procure the cargo in question; nor (2) realised the amounts that have been paid by it, to the sellers under tripartite agreements; 11. As such, contention raised by the respondent in its statement of objections that overseas buyers with whom the respondent had entered into tripartite contracts along with FMPL/FEIPL for sale of cargo have gone back on their commitment to make payments to the respondent company and thereby committed breach of their respective contracts and as such the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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