9911796707
TMI Blog2014 (4) TMI 1317X X X X Extracts X X X X X X X X Extracts X X X X ..... have knowledge of the final outcome, but that in itself cannot be given a status of a binding condition so as to bring in new obligations or absolving the parties of its existing obligation for paying the outstanding. The Court is, therefore, of the view that the petitioner Company has made out a case of outstanding and respondent Company has liability to make good the outstanding i.e. US$ 371,019.00. Let there be some more time available to the respondent Company for discharging its liabilities to the petitioner Company and therefore while admitting the matter the Court is inclined to grant time to the respondent Company to make good its liability to the petitioner Company on or before 16.06.2014, failing which the further order of advertisement will be passed. The matter may come up on 18.06.2014. X X X X Extracts X X X X X X X X Extracts X X X X ..... of US$ 889,350.00 as on 23.08.2007. The Annexure-C is the statement of outstanding amount of US$ 452,543.00, which is dated 03.12.2007. Despite repeated requests and reminders, the balance payment did not come forward. The respondent Company on account of its own financial constrains had requested the petitioner Company to accept the amount due from another Company for which the requisite resolutions came to be passed on 30.01.2009 and thereafter the amount was to be collected from another Company called M/s. Spanco Singapore Pte. Limited (for short 'M/s. Pte. Ltd.') The further Board Resolution came to be passed on 11.03.2010, authorizing the petitioner to collect an amount of US$ 80,947.65 out of the total outstanding debt of US$ 452,843.00 from M/s. Pte. Ltd. The copy of the said resolution is at Annexure-E. The petitioner in pursuance thereof received an amount of US$ 80,948.00 straight from M/s. Pte. Ltd. on 11.03.2010, which it received on behalf of the respondent Company. The balance payment was covered by one more Board Resolution dated 03.09.2011, authorizing M/s. Pte. Ltd, to make payment of US$ 371,019.00 by the respondent Company to the petitioner. That resolution is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isitions set out in the said statutory notice dated 11th of January, 2012 served upon it under the provisions of the Companies Act, 1956 nor made any payments demanded therein or replied to the same. The Company has admitted its financial Resolutions and promised to pay the outstanding amount. It is apparent that the respondent Company has no financial means to pay its admitted dues and was trying its best to avoid such payments and gain time. The Company, in spite of all promises repeatedly made, failed to repay its admitted debts. In these premises, it is evident that the Company is in involved circumstances and not in a position to make payment of it admitted debts. The Company is therefore liable to be declared as commercially insolvent and liable to be wound up by this Hon'ble Court under the provisions of the Companies Act, 1956. The notice has not been replied which left the petitioner with no other remedy, but to approach the Court as the other documents placed on record indicate that the respondent Company is having financial difficulty in which it can not discharge its obligations, as many cases have been pending for bouncing of cheques etc. under Negotiable Instruments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be raised is not to be said to be a bonafide defense nor is the plea available to the Company to justify their stand for debt being time barred, then in that situation, the Court may pass appropriate order by admitting the petition and issuing the advertisement or that may be deemed fit for granting sometime to the respondent company for making the payment of outstanding dues, as prayed for, by the stipulated time, failing which the consequential order may follow. 8. Learned counsel for the respondent Company contended that the memo of the petition itself indicate that the entire transaction was a part of the project called the BBMP. A special emphasis was led upon the averment made in this petition in paragraph Nos.5, page no.4, and averments were submitted to be clear admission on the part of the petitioner that the transaction was in fact one link of the entire chain leading to the parties to be dependent upon each other as special emphasis was laid on phraseology employed to justify the submission. It would be in fitness of thing that paragraph No.5 be reproduced hereunder. The petitioner is a leading service provider for the telecom sector and has much acclaim and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without any substance. The resolutions and its text and preface would be subject matter of consideration by the competent Civil Court and therefore when such a plea is raised bonafide, the Court may not entertain this petition and dismiss it on this ground. 10. Learned counsel for the respondent Company, in support of her submission, relied upon the following authorities; (i) in case of M/s. Madhusudan Gordhandas & Co. Vs. Madhu Woolen Industries Pvt. Ltd., reported in 1971 (3) Supreme Court Cases 632 with special emphasis upon paragraph Nos.20 and 21. (ii) in case of Ferro Alloys Corporation Ltd. Vs. Rajhans Steel Ltd., reported in 1999 Company Cases 426. (iii) in case of Bombay House Vs. New Model Industries (Pvt.) Ltd., reported in 1992 Company Cases 720. (iv) in case of M/s. Poddar Projects Limited Vs. M/s. Krishan Metal Industries Private Limited, reported in AIR 1996 Andhra Pradesh 305. (v) in case of Vijayalakshmi Art Productions Vs. Vijaya Productions Pvt. Ltd., reported in 1997 Company Cases 353. and submitted that when the Courts have taken unequivocal view that there is a plausibility of plea of debt being time barred, then the same is required to be treated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally or by an agent duly authorised in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right. Sections 194 and 195 of the Companies Act:- 194:- Minutes to be evidence.- Minutes of meetings kept in accordance with the provisions of section 193 shall be evidence of the proceedings recorded therein. 195:- Presumptions to be drawn where minutes duly drawn and signed.- Where minutes of the proceedings of any general meeting of the company or of any meeting of its Board of directors or of a committee of the Board [have been kept in accordance with the provisions of section 193] then, until the contrary is proved, the meeting shall be deemed to have been duly called and held, and all proceedings thereat to have duly taken place, and in particular, all appointments of directors or liquidators made at the meeting shall be deemed to be valid. 13. The plea of debt being time barred appears to be not tenable in law. The language of resolution and the minutes of the meeting and debt mentioned, clearly indicate that the debt cannot be said to be time barred as the resolutions and the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
