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TMI Blog2018 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order was passed on 25th June 2014. The facts in all the four company petitions are identical except that amounts differ. Therefore, I am only going through briefly stating the facts in company petition No. 656 of 2013. 3. Petitioner is engaged, interalia, in the supply of steel products. The company had approached petitioner with an offer to purchase petitioner's products and entered into multiple sales contracts cum confirmations with petitioner. Petitioner sold, supplied and delivered the goods to respondent-company and raised various invoices. In company petition No. 656 of 2014, petitioner has raised 21 invoices on the company for a total sum of Rs. 1,52,29,090.56. The company made an on account payment of Rs. 7,86,539.60 leaving an outstanding amount of Rs. 1,44,42,550.90. Despite repeated emails, no amount was paid. Statutory notice dated 26th April 2013 was sent but no reply was given by the company. Hence, petition came to be filed. On 25th June 2014, the following order was passed : Heard the Learned Advocates appearing for the Parties and the following order is passed by consent : i. The Respondent Company has agreed to pay to the Petitioner an amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the self operative order, the petition came to be admitted and advertised. Notice under Rule 28 of the Companies (Court) Rules, 1959 stood waived by the consent order. Petitioner has also filed an affidavit of one Sandip Rikame affirmed on 19th January 2016 confirming advertisement the admission of the petition in Free Press Journal and Navshakti on 15th January 2015 and also in Maharashtra Government Gazette in the issue dated 5 to 11 March 2015 at Sr. No. 660. 6. After additional affidavit of petitioner was filed, respondent-company filed an affidavit of one Rohit R. Ganage affirmed on 15th September 2017 opposing the petition. The defences raised are as under : (a) Petitioner has suppressed the fact that the petitioners insurance company Ksure, Korea has paid the claim of petitioner and therefore by suppressing this fact, petitioner is attempting unjust enrichment. (b) Petitioner having received the amount from the Insurance Company under the insurance claim, there was no longer a debt outstanding and that petitioner is not a creditor of the company and therefore this petition would not lie at the instance of petitioner; (c) Petitioner is not a creditor wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to do - namely, to ask him to hand them that sum. That is a perfectly simple solution, but I cannot see that the fact that they choose to forgo their right to receive this sum from their assured imposes any obligation upon him. The insurance company may choose to make the assured a present of the 281. 2s. 8d., but that does not affect his legal right. I think the sum and substance of it is this: that this case is not in a class which resembles in any particular the case of Hirachand Punamchand V. Temple. There is lacking, amongst other things, what I think is the essence of that case - namely that as between themselves and the father, by a bargain which was superimposed upon and subsequent to the original contract between the money lenders and the son, the money lenders obliged themselves to accept the money in settlement, and, although it was held there was no accord and satisfaction, the Court held that they had thereby disabled themselves from suing the original debtor. Here there are no facts resembling those facts, and for that reason I decline to apply a case, decided with reference to an entirely different set of facts, in circumstance to which hitherto nobody has ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned solely with the mutual rights and liabilities of the parties to the contract of insurance. It confers no rights and imposes no liabilities upon third parties who are strangers to that contract, It vests in the insurer who has paid a loss no direct rights or remedies against anyone other than the assured. He cannot sue such parties in his own name (see Simpson v. Thomson; he is bound by any release given by the assured to a third party (see West of England Fire Insurance Co v. Isaacs. The insurer's rights against the assured cannot be affected by any subsequent contract, or dealing between the assured and a third party. (Boag v. Standard Marine Insurance Co. Ltd.; West of England Fire Insurance Co. v. Isaacs." Therefore, the Company's submission that the present proceeding is not maintainable on the basis that petitioner had already received money in lieu of its claim against the Company from the insurance company is, in my view, without any basis in law and accordingly rejected. 11. In PVD Plast Mould Industries Ltd. Vs. ING BHF Bank Aktiengesellschaft 2008(144) Company Cases 484, Gujarat, a Division Bench of the Gujarat High Court which had an opportunity to consider a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a 'debt' and petitioner is not a creditor of the company but the claim is for 'damages' and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs. 6,07,00,000/ payable by respondent. 13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at 'Exh.1' to the affidavit in reply is a forwarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebts, are commercially insolvent and require to be wound up. Company petitions allowed in terms of prayer clauses (a) and (b) which read as under : COMPANY PETITION NO. 656 OF 2013 (a) that M/s. Rojee - Tasha Stampings Private Limited be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company with all powers under the Companies Act, 1956. COMPANY PETITION NO. 97 OF 2014 (a) that M/s. Poona Tools Pvt. Ltd. be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company with all powers under the Companies Act, 1956. COMPANY PETITION NO. 98 OF 2014 (a) that M/s. Automotive Metal Stampings Private Limited be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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