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TMI Blog2018 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT) needs to be held that the company petitions at the behest of the respondent were nevertheless maintainable. - APPEAL (Lodg)NO.134 OF 2018 IN COMPANY PETITION NO.656 OF 2013, AND APPEAL (Lodg)NO.135 OF 2018 IN COMPANY PETITION NO.98 OF 2014, AND APPEAL (Lodg)NO.136 OF 2018 IN COMPANY PETITION NO.99 OF 2014, AND APPEAL (Lodg)NO.137 OF 2018 97 of 2014 - - - Dated:- 2-4-2018 - NARESH H. PATIL AND G.S.KULKARNI, JJ. Mr. V.P. Sawant with Mr. Nikhil Patil Mr. Prabhakar Jadhav i/b. Mr. Prabhakar Jadhav, for the Applicants/Appellants. Mr. Shyam Kapadia with Mr. Darshan Mehta Ms. Krithika Anand i/b. Dhruve Liladhar Co., for the Respondents. JUDGMENT: (Per G.S.Kulkarni, J.) 1. These appeals arise out of a common order dated 11 January 2018 passed by the learned Single Judge whereby the appellant- companies are ordered to be wound up with a consequent direction appointing the Official Liquidator, High Court, Bombay as a Liquidator of the appellant -companies, with all powers under the Companies Act,1956. 2. For convenience the four appellants are referred to as the 'Company'. The respondent is engaged in the business of supply of steel products was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 2015 33,72,222 8 10th February, 2015 33,72,222 9 10th March, 2015 33,72,222 10 10th April, 2015 33,72,222 11 10th May, 2015 33,72,222 12 10th June, 2015 33,72,222 13 10th July, 2015 33,72,222 14 10th August, 2015 33,72,222 15 10th September, 2015 33,72,222 16 10th October, 2015 33,72,222 17 10th November, 2015 33,72,222 18 10th December, 2015 57,44,444 Total 6,07,00,000 iii. In the event of the Respondent Company failing to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany from its insurers KSure- Korea . It was stated that this fact was suppressed by the respondent who was attempting to unjustly enrich itself by making claims against the company. It was contended that in view of the payment received from the insurance company, there was no longer a debt outstanding from the company and the respondent was not a creditor of the company. It was thus contended that the winding up petitions at the instance of the respondent would not be maintainable, as the respondent ceased to be a creditor within the meaning of Section 433 and 434 of the Companies Act. It was stated that this fact had went unnoticed when the consent order dated 25 June 2014 was passed by the Court. It was thus the case of the company that it be released from the statements and undertaking as made to the Court and recorded in the consent order dated 25 June 2014. 5. The learned Company Judge having considered the rival pleas held that the said defence of the company was not acceptable as the company was a third party and could not have taken a defence that the amounts subject matter of the debt of the company has already been paid by the respondents' insurer and consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts as outstanding from the company, from its insurer and thus there was no debt due and payable by the company to the respondents, the learned Counsel for the respondents has placed reliance on the decisions in the case Union of India Vs. Sri Sarada Mills Ltd. AIR 1973 SC 281; Economic Transport Organization, Delhi Vs. Charan Spinning Mills Pvt.Ltd. Anr. (2010)4 SCC 114. 8. On the other hand, the learned Counsel for the respondents in supporting the impugned order would submit that despite the payment being made by the insurer, the respondent's cause of action against the company would very well survive considering the settled position in law, that such a contention as urged on behalf of the company cannot be a defence as it would be the subject matter of separate proceedings between the insurer and the respondent. It is submitted that the company being a third party cannot take such a defence so as to disown its liability. It is next submitted that the learned Single Judge has correctly observed that the affidavit of Mr.Rohit R. Ganage dated 15 September 2015 interalia stating that it had recently come to the notice of the Directors of the Company that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the contract between the respondents and the insurer was required to be considered by the Company Court, so as to ascertain whether the debt outstanding from the company was assigned by the respondent in favour of the insurer and/or the insurer subrogates the company qua the said debt. The submission is also that at the most the insurer of the respondent would be entitled to make a claim against the company and not the respondent. 11. We are surely not persuaded to accept the above pleas of the company. This for the more than one reason. We cannot lose sight of the fact that the company in the company petition's in question had agreed to a consensual order dated 25 June 2014 passed by the Company Judge agreeing to discharge his liability and make full and final payment of ₹ 6,07,00,000/ in eighteen installments starting from 30 July 2013 till 10 July 2016 as set out in the chart at page 2 of the said order passed by the Company Court. Further in the event of default and failure to pay any installment, it was agreed and the Court had directed that the company petitions shall stand revived and the petitions would stand admitted. The company defaulted in paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the insurance company has paid the money to the principal creditor, then the appellant company is not answerable to anybody. The appellant company is still liable and applying the principle of subrogation, the insurance company can always recover the money from the appellant and in any case, if the money is received by the creditor company then, to the extent of the receipts, the creditor company would refund the money to the insurance company. That would be a matter between the insurance company and the creditor company. The debtor is not entitled to take any benefits out of the said transaction. 13. We are also in agreement with the view taken by the learned Single Judge of this Court in Jiangsu Skyrun Waxi Co.Ltd. VS. Syrma Technology Pvt. Ltd. Company Petition no.294 of 2014, order dt.22.12.2014 wherein the learned Single Judge referring to the decision as we have noted above, observed thus: 18. . In light of the judgments referred to above, the submission of the Company In light of the judgments referred to above, the submission of the Company that, in view of the phraseology of the payment receipt -cum -subrogation letter which includes the words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be unknown and thus no negligence or misconduct could be claimed against the railways. The plaintiff had accordingly instituted a suit for damages. It is in the said suit the defendants -railways contended that the plaintiff was not entitled to institute the suit as it had insured the goods with the Indian Globe Insurance Co. and had received the total loss from the said Company, and therefore, the railways was not liable for damages. In the majority judgment, the Court refused to accept the said contention and made the following observation: 21. The defence of the Railway Administration was that the mill realised from the insurance company the damages and as such the plaintiff (meaning thereby the respondent mill) has no right to claim any sum in this action . If the specific plea of assignment had been taken in the written statement the respondent mill would have impleaded the insurance company. The Court could 'have in those circumstances been in a position to afford full and complete relief to the parties. 22. In the present case the insurance company and the mill proceeded on the basis that the, insurance company was only subrogated to the rights of the assur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quest the assured to sue the wrong doer (service provider). (b) Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured. (c) The insurer cannot in its own name maintain a complaint before a consumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation-cum- assignment executed by the assured. (d) Oberai is not good law insofar as it construes a Letter of subrogation -cum -assignment, as a pure and simple assignment. But to the extent it holds that an insurer alone cannot file a complaint under the Act, the decision is correct. (emphasis supplied) 16. Considering the above position in law on subrogation, in our opinion, the above decision is of no avail to the appellants as the issue in the present case does not arise from any adjudication on subrogation or assignment by the learned Single Judge. In any event, even assuming that there was a subrogati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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