9911796707
TMI Blog2018 (4) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies 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 approached by the company with an offer to purchase the respondents' products. The parties entered into multiple sales contracts cum confirmations. Accordingly, the respondents sold, supplied and delivered goods to the company and raised various invoices. The respondents had issued twenty one invoices to the Company M/s.Rojee-Tasha Stampings Pvt. Ltd. for a total amount of Rs. 1,52,29,090.56. The company had made an on account payment of a meager amount of Rs. 7,86,539.60, leaving outstanding of Rs. 1,44,42,550.90. There were similar transactions with the other Companies. Correspondence ensued between the parties, however the company did not make payment of the outstanding amounts. There were different amounts which were due and payable by the other group of companies. A statutory notice dated 26 April 2013 was addressed by the respondents to the Company, which was not replied. Consequently, the respondents filed the four company petitions in question under Sections 433(3), 434 and 439 of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Companies (Court) Rules, 1959 shall also stand waived on behalf of the Company. vi. The above Company Petitions are accordingly disposed of." 3. The company defaulted in making payment of the installments and consequent to the self operative order dated 25 June 2014, the company petitions came to be admitted and were advertised. On behalf of the respondent, an affidavit of Mr. Ravindra Bhiku Rikame dated 19 January 2016 came to be placed on record of the company petitions, confirming the advertisement of admission of the petition in the newspapers dated 15 January 2015 and also in the Maharashtra Government Gazette dated 5 March 2015 11 March 2015 at Sr.No.660. The company also placed on record an affidavit of Jin Deok Park dated 12 February 2015 interalia stating that the company had defaulted on the amounts payable under the said consent order and out of the amount of Rs. 6,07,00,000/ agreed to be paid as per the schedule as recorded in the consent order only an amount of Rs. 12 lakhs was paid. 4. The company Court thereafter took up the company petitions for hearing. The company filed an additional affidavit of Mr. Rohit R. Ganage dated 15 September 2015 oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and available with the company when the company Court passed an order dated 25 June 2014. The learned Single Judge accordingly ordered that the company be wound up. The company being aggrieved by the impugned order is before the Court in the present appeals. 6. Learned Counsel for the appellant/company in assailing the impugned order has made the following submissions: (i) There should have been a disclosure by the respondent of the receipt of the amounts from the insurer-Ksure. This to ascertain whether the insurer was assigned the rights in respect of the debt of the company towards the respondent and/or to ascertain whether the insurer subrogates the rights of the respondent to the debt in question. (ii) As the respondents had received the entire amount from the insurance company, there was no longer a debt outstanding from the company as also the respondent ceased to be creditors of the company within the meaning of Section 433 and 434 of the Companies Act. (iii) The observations of the learned Company Judge that the Company has filed a false affidavit when it contended that it had recently received the knowledge of the payment made by the insurer to the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade to the respondents from 30 July 2014 to 10 December 2015. Admittedly, the said order of the Company Court was a self operative order inasmuch as the company failing to pay any of the installment, it was directed that the company petitions shall stand revived and without reference to the Court would stand admitted to be made returnable after six weeks, from the date of default and advertised in local newspapers. The Company petitions were accordingly advertised and thereafter were taken up for final hearing and decided by the impugned order. It is thus clear that there is no dispute that there was a debt due and payable by the company towards the respondents. The only defence of the company as introduced in the affidavit of Mr.Rohit R. Ganage dated 15 September 2015 is that the company had recently become aware that the respondents had duly received the outstanding payments qua the transaction between the company and the respondent from its insurer-Ksure and having received the amounts which were due and payable by the company, there was no longer a debt outstanding from the company to the respondent. It is the contention of the Company that the insurance company thus was a nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our opinion, such a plea introduced in the affidavit of Mr.Rohit R. Ganage is an argument of desperation. Being a third party, the company is not entitled to take a defence that the respondent being paid by the insurer, the liability of the company would ceased to exist, as the insurance contract between the respondent and its insurer is a matter interse between the said two parties. It is for the insurer depending upon the terms and conditions of the contract between the respondent and the insurer, to consider its position and recover any amount, if so is received by the respondent under the transaction in question. The company stands completely outside the insurance contract between the respondent and its insurer. In our opinion, the Company cannot espouse the cause of the insurer in making an argument that the respondent is unjustly enriched. In our opinion, the principle of law in this regard can very well be seen from the decisions in "Morley Vs. Moore" 1936(2) KB 359 and "Yorkshire Insurance Vs. Nisbet Shipping Co.Ltd." (1962)2 Q.B.330 as referred in the impugned order. We are also in agreement with the view taken by the Divison Bench of the Gujarat High Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, there is no dispute in respect of the admitted outstanding of US$ 226,283.40 payable by the Respondent. Therefore, the present Company Petition, which is in respect of an admitted debt and an ascertained liability is unaffected by the judgments relied upon by the Company which relate to the non-maintainability of a winding up petition in cases where there is an unascertained sum payable to the Petitioner." 14. The reliance of the Company, on the decision of the Supreme Court in Union of India Vs. Sri Sarada Mills Ltd. (supra) is not well founded. The dispute in the said case arose from a suit instituted by the plaintiff - Sri Sarada Mills Ltd., against the Union of India/Railways for damages to 100 bales of F. P. cotton consigned through their agents from Nagpur to Podhanur under a railway receipt issued by the Central Railway. When the goods had arrived at Podhanur, it was found that 87 bales out of the 100 were burnt and charred and 13 bales were loose and short in weight. When the plaintiff applied for open delivery, the railway authorities at Podhanur got the dama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e insurer pays the amount of loss to the assured, whether the insurer as subrogee, can lodge a complaint under the Act, either in the name of the assured, or in the joint names of the insurer and the assured as cocomplainants?. In answering the said issue, the Court laid down the principles of subrogation in paragraph 35 of the decision and answered the questions so framed in paragraph 51 of the decision. It was held that if there is subrogation in favour of the insurer, the insurer as subrogee can file a complaint under the Consumer Protection Act either in the name of the assured as his attorneyholder or in the joint names of the assured and the insurer, for recovery of the amount due from the service provider. It was held that 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. The observations of the Court in paragraph 51 needs to be noted which read thus: "51. We therefore answer the questions raised as follows: (a) The insurer, as subrogee, can file a complaint under the Act either in the name of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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