9911796707
TMI Blog2008 (6) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... at 2168, Masjid Moth, near Uday Park Market, New Delhi-110049. 3. The respondent company had entered into an agreement with the petitioner on 17.9.2001 to partly utilize and avail the services of non-Preempitible unprotected extended C-Band Regional Beam Transponder of Thaicom-3 satellite of the petitioner for the purpose of digital broadcast applications etc. for a period of 5 years commencing from 15.11.2001. As per the said agreement the service fees of US $49219 per quarter was payable in advance. There is also provisions in the agreement for payment of an additional charge, if petitioner did not receive the payment before due date. 4. The petitioner vide letter dated 16.9.2002 informed the respondent company that they had failed to comply with clause 5.1.1 CP No.128/2005 page 2 of 15 of the said agreement in respect of the payment commitments for the service fees and other expenses. There was a total outstanding amount of US$ 99683. The respondent company admitted the said outstanding amount vide their messages dated 16.9.2002 and 17.9.2002 and assured that they shall remit the amount at earliest without failure by 30.09.2002. The payment position did not improve, and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed in the petition from time to time. On 12.7.2006 the respondent sought time to settle the matter with the petitioner. On 18.8.2006 the respondent made an offer for payment of the entire outstanding amount. The said offer was for payment of the principal amount in 25 monthly instalments of US$5000 each. This proposal was not acceptable to the petitioner. The respondent then sought further time to file an affidavit disclosing a better offer to liquidate the entire liability within 6 to 9 months. 8. The respondent on 30.8.2006 filed an affidavit of Shri S.P. Gupta son of Shri B.P. Gupta, one of the principal officers and Vice President Finance of the respondent company dated 29.8.2006 disclosing a better offer for settlement of the dues of the petitioner. As per this offer the respondent undertook to pay US $1,25,570 as per the schedule mentioned in the affidavit. It may be mentioned that in the said affidavit, there was a typographical error with regard to the amount, which was typed as US$12,570. However, the said error was corrected and was noted in the order dated 6.9.2006. On the same day the respondent also made a statement through its counsel that it shall remain bou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the admitted liability of US $ 1,25,750, only an amount of US $ 72,786 was paid by the respondent within the time schedule provided in the affidavit of undertaking. The Court also took note of the fact that the respondent had undertaken to pay 25% of the total outstanding principal amount on or before 25.12.2007 and that the said assurance had also not been fulfilled inasmuch as only US $ 3000/- had been paid by the respondent to the petitioner which was far less than the 25% of the outstanding liability. In these circumstances, this Court revived the company petition and listed the same for hearing on 4.2.2008. The Court also issued notice to Shri S.P. Gupta, the principal officer of the respondent company who had CP No.128/2005 page 7 of 15 filed the affidavit giving an undertaking for payment of the outstanding dues of the petitioner as aforesaid, to show cause as to why contempt proceedings be not initiated against him under the Contempt of Courts Act for breach of his undertaking to the Court. Thereafter, the company petition was heard on 4.2.2008 and judgment reserved. 12. From the aforesaid narration of facts and the developments which have taken place in these proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t argued by the respondent that the present petition cannot be used as a measure to recover its outstanding dues by the petitioner. In the facts of this case, I see no force in this submission of the respondent as well. The petitioner is not seeking the recovery of its outstanding dues in this petition. The purpose of filing this petition is to bring to the notice of this Court the fact that the respondent company, which is heavily indebted to the petitioner, is not able to repay its debts despite being granted opportunities to repay the same by serving a statutory notice at its registered office. The policy of the law is that companies which are unable to pay their debts should in the larger public interest, be would up so as to save the unsuspecting members of the public from becoming victims of the insolvent condition of the company. 15. Learned counsel for the respondent then argue that under the agreement there is an arbitration clause which provides for all disputes and differences between the parties being referred to, and resolve by arbitration under the rules of United Nations Commission on International Trade Law (UNICITRAL). The arbitration is to be held in Singapore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in respect of a company is passed and liquidator appointed, the liquidator shall step into the shoes of the company and represent the interest of the company in any arbitration proceedings that may be pending. Even if it were to be accepted that the Arbitration and Conciliation Act is a special law and the Companies Act is a general law, I do not see how this submission advances the case of the respondent that the present petition is not maintainable. The said argument may have some relevance in case the Court dealing with the winding up petition were to intervene in the arbitration proceedings. However, that is not the position in the case in hand. Reliance is placed by the respondent in Pradeshiya Industrial Investment Corporation of U.P. vs. North India Petrochemicals Ltd. Anr., (1994) 3 SCC 348 to submit that where the debt is bona fide disputed, and the defence is a substantial one, the Court shall not wind up the company. However, this decision is also of no avail CP No.128/2005 page 12 of 15 in the facts of this case. As aforesaid, the debt to the tune of at least US $ 50,000 is even now not disputed and is admittedly outstanding and the respondent has expressed its in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official liquidator attached to this Court is appointed as a provisional liquidator in respect of the respondent company. The official liquidator is directed to forthwith take over all the assets and books of accounts of the respondent-company. The respondent company is also restrained from transferring, alienating, encumbering or dealing with any of its moveable and immoveable assets, bank accounts and other securities, except for the purpose of, and to the CP No.128/2005 page 14 of 15 extent it is necessary to meet the liability owed to the petitioner and to meet the expenses in the usual course of business. Citation is directed to be published in the newspapers Times of India and Navbharat Times for 4.8.2007. The aforesaid order, except the order relating to the injunction granted as aforesaid which shall come into force forthwith, shall remain in abeyance for a period of two weeks from today to enable the the respondent-company to pay the outstanding debts to the petitioner as quantified on 6.9.2006 ( of US$125,750) with interest @12% p.a. from 6.9.2006 onwards till payment, after granting adjustment for the amount paid after 6.9.2006 from time to time within two weeks. In cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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