9911796707
TMI Blog2011 (10) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... O.080108 dated 1.8.2008. Petitioner remitted a sum of US $ 45,225 to the respondent account. On account of the information received from the respondent-company that it would not be able to ship the said consignment, petitioner was said to have cancelled the purchase order and sought for refund of money remitted. On account of non-receipt of the amount from the respondent, petitioner got issued a legal notice calling upon the respondent to make payment and respondent having admitted to repay the amount, it was not done so. As such, petitioner got issued a statutory notice calling upon respondent to pay the amount, which was not paid by the respondent. Since the amount was not repaid by the respondent, present petition is filed on 7.10.2009 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel appearing for petitioner and Sri V.B. Siddaramaiah, learned counsel appealing for respondent. 6. It is the contention of Mr. Nandakumar that respondent having received the amount, from petitioner and having retained the said amount, respondent ought to repay the amount in its entirety with interest since it has not been able to supply the product, as agreed to. He would also contend that respondent, having retained the said amount for a considerable length of time, it cannot claim that there is no liability for payment of interest since the respondent does not dispute the receipt of money as well as its retention by it. Even otherwise, he would contend that what has been remitted by the respondent is towards the principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount received by it from petitioner and it was repaid alter securing approval from the department of Foreign Exchange through Canara Bank. The amount could not be remitted immediately as agreed to due to non-clearance from Reserve Bank of India since it involved outward foreign remittance from the country and contends that fact remains that respondent has repaid a sum of $ 45,225 to the petitioner commencing from 9.12.2009 to 13.12.2010 as evidenced from the certificate issued by the Canara Bank appended to the memo dated 14.7.2011 (filed on 23.7.2011) and as such, he contends that petition is liable to be dismissed. 8. Having heard the learned advocates appearing for parties, the only point that arises for my consideration is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re unable to ship order of my client permanently. Hence, my clients were constrained to cancel their order on September 24, 2008." (Emphasis supplied by me) This clearly goes to show that product agreed to be supplied by respondent to the petitioner was not on account of its inability to supply but on account of embargo or ban imposed by France where the parent company of respondent is located over Taiwan country where the petitioner company is located and supply had to be made. 10. The respondent having received a sum of $ 45,225 from the petitioner has admittedly repaid the same to the petitioner as under: On 09.12.2009 - 5,500 USD 15.01.2010 - 5,674 USD 09.02.2010 - 5,674 USD 24.03.2010 - 5,674 USD 08.04.2010 - 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner except stating there is short payment. It is for the petitioner to make enquiry and demonstrate this fact and not lay its claim with the respondent when Certificate dated 13.10.2010 would clearly go to show there has been payment of $ 45.225. I do not find any good ground to disbelieve or discard the certificate issued by the Manager, Foreign Department of Canara Bank. This certificate when read alongwith the memo filed by the petitioner dated 17.3.2011 would clearly go to show that amount claimed by the petitioner has been paid by the respondent though petitioner states there is short payment of $210. 12. Insofar as claim of the petitioner with regard to interest is concerned judgment of the Hon'ble Supreme Court in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stems Sdn. Bhd. [2010] 104 SCL 367 (SC) has laid down the contours under which an order of winding up can be passed. "20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt'? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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