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TMI Blog2014 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries (P.) Ltd. [1971 (10) TMI 49 - SUPREME COURT OF INDIA] - Decided in favour of appellant. - Co. Petition No. 294 of 2012 - - - Dated:- 20-12-2013 - R.V.EASWAR, J. For the Appellant : Uttam Dutt. For the Respondent : Siddharth Dutta. JUDGMENT:- R.V. EASWAR, J. This is a petition filed by M/s. John Smedly Ltd. of Derbyshire, England under section 433(e) of the Companies Act, 1956 seeking winding up of Blues Clothing Company Pvt. Ltd. of New Delhi, India for non-payment of GBP 87,240 as per its accounts, for supply of ready-made garments. 2. The petitioner (UK company) which is in the business of manufacture of knitted garments supplied garments to the respondent-company (Indian company) under an agreement date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not receive payment by the said dates they will immediately proceed with legal action for the total outstanding balance. I will liaise internally and inform the solicitor of your response today. Thank you and look forward to resolving this situation very soon. Regards, Jamie" The Indian company sent a reply e-mail thanking Mr. Jamie Tunnicliffe for the support and assuring him of honouring the payment. However no payment was made as accepted by the Indian company and hence the present petition. 4. The main contention of the Indian company, respondent herein, is three-fold. It first contends that as per the terms and conditions of the contract, the UK company can have recourse only under the English law in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission of the winding-up petition on the ground that "there does appear some merit in the contention regarding service of notice on the Respondent". I have gone through the order dated 24-5-2013 passed by this court in CA No.715/2013. I am inclined to hold that it was only a prima facie or tentative view of this court, limited only for the purpose of recalling the order of admission and not a final view, which would be taken when the winding-up petition is taken up again for hearing after recall. This court did not categorically rule that there was no service of the demand notice on the respondent-company; had that been the case, the winding-up petition would have in all probability been dismissed at that stage. I therefore see no merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cliffe shows that the settlement was dependent on the payments of GBP 10,746 each on 15-9-2011, 15-10-2011 and 15-11-2011. If there was default, and "if John Smedley do not receive payment by the said dates they will immediately proceed with legal action for the total outstanding balance". The total outstanding balance was GBP 87,240. There was thus no substitution of any new contract in the place of the earlier contract; it was made clear that if the time-bound settlement is not adhered to, the earlier contract would revive and the whole outstanding balance would become payable. The respondent-company defaulted in honouring the settlement and thus became liable to pay the entire balance of GBP 87,240. There is therefore no question of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 17 September 2009 did was to restructure the debt subject to compliance by the Respondent of the terms and conditions stipulated therein. The debt was never extinguished. On a breach by the Respondent of the terms and conditions governing the sanction for restructuring, the Appellant was entitled to institute a proceeding for winding up on the basis of the inability of the Respondent to pay the debt." 11. In view of the foregoing discussion, none of the contentions is found to be of any merit. It seems to me to be a case where the Indian company (respondent), having received the goods and perhaps also turned them into profit, seeks to wriggle out of the liability to pay the dues to the UK company by taking specious pleas and also by pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng their value and location) of all the assets, both movable and immovable, of the Respondent company and enclose therewith the balance sheets and profit and loss accounts for the past three years and copies of the statements of all the bank accounts for the last one year. The respondent is also directed to furnish the names, address and telephone number etc. of its directors including the Managing Director, Chairman, if any, to the official liquidator along with the statement of affairs. The respondent shall also furnish the name, address and telephone number of its company secretary. It shall also file the details of its debtors and creditors with their complete address and the details of its workmen and other employees and the amount, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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