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TMI Blog2016 (8) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... ke out case that the Respondent owes some claim. Petition is dismissed. - COMPANY PETITION NO.916 OF 2014 - - - Dated:- 29-8-2016 - A.K. MENON , J. Mr. Nikhil Sakhardande with Ms.Naira Jeejeebhoy and Mr.Abraham Varughese i/b Bose Mitra Co. for the Petitioner. Mr. Mayur Khandeparkar with Ms. Anisha Nair i/b India Law for the Respondent. JUDGEMENT A.K. MENON , J. 1. This petition filed under Section 433(3) and 434 of the Companies Act seeks winding up of the respondent company for their perceived inability to pay debts as they arise in the usual course of business. The facts leading upto the filing of present petition are as follows : The Petitioner-company is carrying on business of sale, purchase, import, export and trading of all kinds of agricultural produce. 2. According to the Petitioner, the Respondent approached the petitioner to purchase quantity of 11,637.203 MT of Yellow Peas at price of 24,868.20 per MT. The cargo was delivered by two delivery orders bearing No.114 in respect of delivery at Mumbai and No.115 in respect of delivery at Mundra. Accordingly, the Respondent became liable to pay a sum of ₹ 24,93,96,292.00. The invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veral reminders were sent demanding the balance amount, which remained to be paid. On 28th July, 2014 the Petitioner's Advocate issued a statutory notice. Vide a reply dated 16th August, 2014 the Respondent denied liability to pay, attempted to obfuscate the main issue of non payment of the admitted dues. The Petitioner reiterated its contentions by their rejoinder dated 5th September, 2014 and the Petition was presented. The Petitioner claims that the Respondent-company has suffered huge losses and although there has been reduction in losses the apparent reduction in losses does not reflect true state of affairs alluding to deemed commercial insolvency. 4. Mr. Sakhardande, learned counsel appearing on behalf of the Petitioner after taking the aforesaid facts made reference to material documents which according to him would establish that the present Petition is liable to be admitted. Firstly, he relied upon Exhibits 'D' and 'E' to the petition which are delivery orders dated 23.10.2012 in respect of the two consignments at Canada Yellow Peas delivered at Mundra port and at the New Sewri Warehouse in Mumbai. Mr. Sakhardande then relied upon the contents of Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nover of USD 1.70 Billion. The Respondent-company itself reported a turnover of ₹ 125 crores in financial year 2013-14. It was contended that the Respondent-company is expanding its business operations. He submitted that the Petitioner has suppressed material facts in relation to the transaction in hand. In fact there exists a commercial relationship between six companies, namely, (1) Tiryaki Agro Gida San.ve Ticaret A.S. (2) Mesopotamia FZE, (3) Agrozan Commodities DMCC (Dubai) (Group Company of the Petitioner), (4) Agrozan India Pvt. Ltd. i.e. the Petitioner (5) Agrocorp International Pvt. Ltd. Respondent and (6) Agritrade India Services Pvt. Ltd. Mesopotamia FZE (Mesopotamia') is a group of company of Tiryaki Agro Gida San Ve Ticaret A.S. ('Tiryaki'), The Petitioner i.e. Agrozan India Pvt. Ltd. is a group company of Agrozan Commodities DMCC (Dubai) ('Agrozan Dubai') and the Respondent i.e. Agritrade India Services Pvt. Ltd. is a group company of Agrocorp International Pvt. Ltd. 8. According to Mr.Khandeparkar as set out by the deponent Mesopotamia sold 30,000 MT of Yellow Peas to Agrozan Dubai who sold the same to the Petitioner. Mesopotamia FZE had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the payment in bank transfers were made by Agrozan Dubai and the Respondent between 27.11.2012 to 1.10.2013 and from balance amount of USD 1,000,629.86 a sum of USD 577,109.36 was set off against Tiryaki Agro Gida San.ve Ticaret A.S.'s debt to Agrocorp International Pvt. Ltd. Upon conversion of the said amount of USD 577,109.36 to Indian Rupees of the same was equivalent to alleged claim of the Petitioner and accordingly the accounts stood squared off. Furthermore, it is case of the Respondent that he had issued a debit note on 20th September, 2013 of ₹ 3,52,50,000/- to the petitioner against settlement of the balance amount and this fact that has been suppressed by the Petitioner. A copy of the said debit note is annexed at Exhibit-H to the reply. 10. Having heard learned counsel for the parties and considered the documents, I am of the view that the Respondent has strong and valid defences to the claim. Exhibit-A to the affidavit in reply is chain of email correspondence containing several emails and as part of email dated 16th October, 2012 sent by one Koan Ozan Ozturk of M/s. Agrozan India Pvt. Ltd. to Mr.Suleyman of Tiryaki. The said Ozturk recorded that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the commercial relation between the parties, AGRI TRADE INDIA SERVICES PVT. LTD. has no any debts to the other parties (Mesopotamia FZE, Agrozan Dubai, Agrozan India) and is not considered as a party anymore. This is letter addressed to the Respondent and records inter alia that the Respondent, as a result of the commercial transaction referred to above the Respondent does not owe any debt to any other party including Mesopotamia, Agrozan Dubai and the Petitioner. The amount of USD 577.109.36 referred to earlier in this order is subject of a book entry debited to Agrozan Commodities and recorded to the Respondent as of 29th December, 2013. This is evident from Exhibit-F being the letter issued by Mesopotamia to the Respondent. A similar letter is also issued by Mesopotamia to Agrozan Singapore, the principals of the Respondent at Exhibit-G. The debit note referred by Mr.Khandeparkar dated 20.9.2013 appears at Exhibit-I and it clearly makes references to the quantity of yellow peas in contemplation with buyback of the said yellow peas and the value thereof which shows that a sum of ₹ 35,250,000/- was debited to the account of the Petitioner. The amount debited covers th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand it is Petitioner, who has attempted to obfuscate and has suppressed the true nature of transaction between parties. In paragraph 15 of the affidavit in rejoinder the deponent states as follows : I state that the Respondent has fraudulently manufactured the Debit note dated 20th September 2013 in order to mask their true liability towards the Petitioner and substantiate the authentic existence of the same through a contorted and convoluted story of a set off agreement wherein the Respondent's liability towards the Petitioner has been cleared. I deny and dispute that the Petitioner did not object or disapprove the said debit note. 13. Further, apart from merely stating that the Petitioner denies and disputes and that it did not object or disapprove of the debit note, nothing in the affidavit inspires confidence. The attempt to obfuscate continues in the said paragraph, where the Petitioner in relation to purchase confirmation reference PUR/AGRI/00i/13-14 contends that it does not pertain to the transaction at hand but refers to some different transaction. 14. In my view these are aspects that cannot be gone into a petition filed for winding up. The contents of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc. in relation to the said contract. However, he submitted that he had no instructions on this aspect of the matter. The provisions of Stock carry and Sale service contract appears to be based on a Joint Venture contract of the same date between Agrozan Dubai and Mesopotamia. Paragraph 2 of the said Joint Venture agreement reads as follows : 2. Agrozan Commodities DMCC is responsible with landing, forwarding, custom clearance, bagging, warehousing, selling of the goods in India, Mundra, Mumbai and at other final destinations if in case through its own subsidiary Agrozan India Pvt. Ltd. or other service providers. Against completion of the sales, Agrozan Commodities DMCC is responsible with paying back sales receivables deducting all domestic expenses made in India and converted to USD from INR at day of transfer of Mesopotamia FZE under above mentioned invoices. Partial payments are allowed. 16. Thus, it is evident that Stock carry and Sales service contract worked itself out in tandem with the provisions of this Joint Venture agreement. Mr.Sakhardande sought to distance the Petitioner's case from these documents contending that these were not signed and in any event t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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