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TMI Blog2016 (12) TMI 1915X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the Petitioners were shown to have been received from M/s Indicaa Company. Even in the balance sheets and the books for the final year 2013-14, the Indicaa Company is not shown as the debtor of the Respondent- Company. On perusal of the financial statement of the year ending of March 2014, neither in the list annexed thereto M/s. Indicaa Company is shown as a debtor in connection with the subject transaction. Upon prima facie consideration of the material on record and taking note of the reluctance on the part of the Respondents in producing the complete financial records of the Respondent-Company, it is opined that the matter requires consideration and is not liable to be summarily dismissed. Admittedly, the amount has been received from the Petitioner by the Respondent-Company, the claim that the amount has been received on behalf of Indicaa Company has not been established by the Respondents. In such circumstances, it cannot be said that the Respondents have shown any bonafide dispuite with regard to the claim put forward by the Petitioners. The Respondent- Company received a notice and only sought documents from the Petitioner though the fact that the amount was received fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Estate, Cuncolim. It is further contended that the Company- named M/s. Indicaa Group Limited, is based in Dubai and supplies commodities to the Companies based in India and, accordingly, on 07.06.2013, the said Indicaa Company and the Respondent- Company entered into a transaction wherein the Indicaa Company and the Respondent-Company entered into a transaction whrein Indicaa Company had to supply steel scraps of around 1000 MTS per month to the Respondent-Company and that it was further claimed that the Petitioner was engaged by the said Indicaa Company to act as an indenting agent of the said Indicaa Company which meant that it was handling all the affairs pertaining to the said purchase Orders. It is further pointed out that in July 2013, the said Indicaa-Company sent around 80 containers at a time without prior intimation to the Respondents on the ground that as the international price of scrap was diminishing, it would be appropriate to send such supply. It is further pointed out that M/s. MSC Agency India Private Limited which is a Shipping Company, allowed the consignment only after payment of the detention and demurrage charges, As the consignment sent was almost amounti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- claimed by the Petitioners is not a lone but demurrage charges which the said Indicaa Company had undertaken to pay for the extra consignment. Accordingly, the Respondents prayed that the Petition be rejected. 5. Thereafter, a rejoinder was filed by the Petitioner. It was pointed out that the said Respondent-Company and Indicaa Company had executed a contract dated 17.05.2013 for the supply of 1000 MT of steel scrap at the rate of USD 402 per metric ton and as the price of steel scrasp fell, lower than the contract price, the Respondent-Company asked the Indicaa Company to offer a discount and, therefore, the same contract was modified to USD 352 per metric ton. It is further pointed out that another contract was signed on 10.06.2013 for the supply of 1000 metric ton of steel scrap which the Respondents have deliberately suppressed. The supply of the scrap in July 2013 of 80 containers was in accordance with the two contracts. It is further pointed out that the Respondent-Company had no finance to release the consignment from the Port and the consignment was lying at the Port which incurred demurrage which the Respondents are liable to pay. Thereafter, at the request of the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oucher. An additional affidavit was also filed by the Petitioners. It was further pointed out that in the course of the hearing, this Court had asked the Respondent to produce the balance sheets and the books of account for the financial year 2013-14 which were not produced by the Respondent-Company but, however, the Respondents have produced their annual report of the year 2013-14 which includes the benefit as well as profit loss account which does not list M/s. Indicaa Company as a debtor. It is further pointed out that the ledger accounts produced by the Petitioner along with the ledger account dated 24.08.2015 does not inspire confidence as the ledger entries do not correspond to the vouchers produced by the Respondent-Company. Thereafter, another affidavit was filed by the Respondent. It is further pointed out that the Respondent- Company has maintained a separate ledger account for MSC Agency Private Limited entering all the particulars of the payments made to the said Agency which are reflected in Debit Column which shows that the said amount was paid to the Oriental Bank of Commerce Panaji. It is further pointed out that the disputed amount of Rs. 10,00,000/- given by the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up Petition would cause grave prejudice to the Respondent-Company and its reputation. Learned Senior Advocate further submits that once there is a bonafide dispute raised by the Respondent-Company, the question of admitting and proceeding with the winding up of the Company Petition would not at all be justified. Learned Senior Advocate has thereafter taken me through the statement of accounts as well as records produced in the file to point out that the amounts which have been received from the Petitioner have been adjusted with the amounts payable to Indicaa Company which itself would show that the Petitioner did not have a legally enforceable debt against the Company. Learned Counsel as such submits that the Petition be dismissed. 9. I have duly considered the rival contentions of the parties and I have also gone through the records. The details/facts as recorded herein above, would clearly show that the Petitioner had paid Rs. 10,00,000/- to the Respondent- Company. It is contended by the Respondent-Company that such amount was paid by the Petitioner at the instance of M/s. Indicaa Company but, however, the Respondents have failed to produce any material, prima facie, to subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Respondent, is not applicable to the facts of the present case. The Respondents are unable to point out that any material is suppressed by the Petitioners. 11. In view of the above, upon prima facie consideration of the material on record and taking note of the reluctance on the part of the Respondents in producing the complete financial records of the Respondent-Company, I am of the opinion that the matter requires consideration and is not liable to be summarily dismissed. Admittedly, the amount has been received from the Petitioner by the Respondent-Company, the claim that the amount has been received on behalf of Indicaa Company has not been established by the Respondents. In such circumstances, it cannot be said that the Respondents have shown any bonafide dispuite with regard to the claim put forward by the Petitioners. The Respondent- Company received a notice and only sought documents from the Petitioner though the fact that the amount was received from the Petitioners by the Respondent- Company was clearly found from the books of account maintained by the Respondent. 12. The Apex Court in the Judgment reported in 1971 (3) SCC 632 in the case of M/s. Madhusudan Gord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the benefits of any such other creditors. 14. The Division Bench of this Court, Principal Seat at Mumbai, in the case of Videocon Industries Limited Vs Intesa Sanpaolo S.P.A., in Appeal (L) No. 29 of 2014 in Company Petition No. 528/2012 has observed at paras 42 and 43 thus : "42. When we so indicated at the conclusion of the arguments, learned counsel for Videocon, however, submits that in any view of the matter the learned Company Judge erred in directing Videocon to pay the amount to the Bank. It is submitted that at the most the amount could have been directed to be deposited in Court but not paid over to the Bank. It was vehemently submitted that the winding up petition is for the benefit of all the creditors and any amount paid after filing of the winding up petition would enure for the benefit of all the creditors and, therefore, the impugned direction given by the learned Judge requiring Videocon to pay 38 Million Euros to the Bank is contrary to the settled legal position. 43. The argument is fallacious for the simple reason that after Videocon pays the amount to the Bank, the winding up petition would stand dismissed and, therefore, there would be no order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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