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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 ..... company (Indian company) under an agreement dated 23-10-2009, valid for one year. The UK company supplied garments to the Indian company during the period from 12-11-2009 to 25-11-2010 under six invoices for a total sum of GBP 114,999. The goods were undisputedly received by the Indian company, which made a part payment of GBP 27,759 towards the invoice dated 12-11-2009, which was for GBP 30,420. The balance amount of GBP 87,240 was, as per the accounts of the UK company, due and payable. 3. Despite several demands, the balance amount was not paid. A series of e-mails were exchanged between the two companies, in one of which (i.e., 19-8-2011) it was proposed on behalf of the UK company that the outstanding dues can be settled by payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 case of disputes and the Indian courts have no jurisdiction. The following clause in the contract is relied upon: "20.8. The formation, existence, construction, performance, validity and all aspects of the contract shall be governed by English law and any disputes shall be resolved exclusively in the English Courts". The second contention is that under the Indian Contract Act, 1872, in case of breac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 in the argument that the demand notice was not served. 8. The contention that the dispute is governed by the English law and only the English courts have jurisdiction must fail, the reason being that it has not been shown by the Indian company that this was one of the terms of the contract between the parties. The clause relied upon by the respondent is actually part of the contract governing internet sales b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 UK company being entitled only to sue for specific performance. 10. A Division Bench of the Bombay High Court in SBI Global Factors Ltd. v M/s. K Sera Sera Production Ltd. (2013) 4 Comp LJ 75 (Bom.) dealt with a similar contention. In that case, the consequence of the failure to adhere to the terms and conditions of the restructuring of the loan was made evident in the sanction letter, the consequence being tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 placing an untenable interpretation on the settlement proposal by which the original dues of GBP 87,240 was brought down generously to GBP 32,240. It also appears to me to be a case where the respondent has the ability to pay, but does not choose to pay; in such a case, the court will not come to its defence, as held by the Supreme Court in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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