9911796707
TMI Blog1980 (4) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... matter was adjourned as it could not be taken up on the grounds that the counsel were not available at the time of hearing. Finally, the matter was taken up. The claim of the petitioning creditor arises out of an export contract for supply of various qualities and quantities of A.C.S.R. conductors by the company to the foreign buyer in Pakistan being the Pakistan Water & Power Development Authority, hereinafter referred to as W.A.P.D.A. The said transaction for the supply to the foreign buyer by the company was routed through the petitioning creditor as the agent and also through the Industrial Import Private Limited, 34, Stephen House, 4, B.B.D. Bag (East), Calcutta 1, and Associated Commercial Agencies, Associate Chambers, 24/25, Patiala Ground Link, Mcleod Road, Lahore, who were acting as the Indian and Pakistani agent of the petitioning creditor. The said W.A.P.D.A. of Pakistan invited a global tender due on December 20, 1976, for the purchase of the said goods. Thereafter, the petitioning creditors' said agent in India invited offers from Indian Manufacturers of the said articles accordingly and the company submitted its offer together with quotation by its letter dated Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/.132" Code Word : ' RABBIT ' Based on : 215 (Part-II)/ 1956. (Technical particulars enclosed) 3,000 Miles US $ 308.00 per mile US $ 924,000.00 (US Dollar Thirty-seven Lakhs Thirty-two Thousand Eight Hundred only) US$ 37,32,800.00 Price : Prices quoted above are on FOB Calcutta basis. Rates quoted are based on the current rate of exchange, i.e., U.S. $ 11.40 Indian Rs. 100. If there be any adverse fluctuation of dollar rate from the above that is to be borne by the purchasers. Validity : Our offer will remain valid for acceptance for a period of 45 (forty-five) days from the date of closing of the Tender (i.e. 20-12-1975); Delivery: Delivery of the conductors quoted will commence within 60 (sixty) days from the date of receipt of full, final and complete in all respects order together with the letter of credit at our end will be completed at the rate of 1,000 miles per month on an average of all the items taken together subject to availability of ship and Force Majeur. Payment: Payment will have to be effected by an irrevocable and unrestricted letter of credit to be opened in our favour by the importers for the full value of the contracted goods. Such letter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial conditions laid down in this contract. Sl. No Description of Stores Qty. 'Miles' Tare prt. (Mile CAF) Total CAF Wagha value (US $) (US $) 1. A.C.S.R. "LYNX" 600 1216.718 7,30,030.80 2. A.C.S.R. "RABBIT" 3,000 326.020 9,78,060.00 Total 17,08,090.80 (US Dollar Seventeen lakhs Eight thousand Ninety decimal eight only) (U.S. $ Seventeen Lakhs, Eight Thousand Ninety Decimal Eighty only) Special Conditions: (i)....................... (ii)...................... (iii)..................... (iv)...................... 9.Name of Principals : M/s. EURO METAL LTD. 1, Lambath Hill, London, EC 4V-4AS UK 9A.Name of Manufacturer : M/s. Aluminium Cable and Conductor (UP) Ltd., 2-A, Shakespeare Sarani, Calcutta-700016. 10.Payment : (a)The Residential Representative, WAPDA, 152-J/2 ECR, Society, Karachi 29, will open a confirmed and irrevocable letters of credit for the total C & F WAGHA Value, i.e. , U. S. $ 17,08,090.80 in favour of your Manufacturer. The L/C will be encashable on production of: (b)Your agency commission of $0.50 per mile, i.e. , Rs: 17,904.24 will be payable to you by the Resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aluminium Cables & Conductors (U.P.) Private Limited. (Sd.) Director. It also appears that by a letter dated the 29th of April, 1978, the company intimated the petitioning creditors' said Indian agent as to the particulars of the invoices and the commission amount payable with a tentative date of remission of the same. The said letter is set out hereunder: Annexure 'E' Shakespeare Sarani,CABLES 'STALCOND' Calcutta-700 016.April 29, 1978. Alcond/WAPDA/P/NDG/78 M/s. Industrial Importers Pvt. Ltd., "Stephen House", 34, Dalhousie Square East, Calcutta. Dear Sirs, With reference to our invoice-wise credit notes dated 18-4-1978, issued in favour of M/s. Eurometal Limited, 1, Lambath Hill, London, EC 4V 4 AS/ U.K. covering their commission amount accrued against our supply of ACSR conductors to Pakistan under P.O. No. 3419/DPE/ADP-IV/2014/1811 dated 15-1-1977, we are pleased to give hereinbelow the remittance schedule subject to the approval of the Reserve Bank of India, received by us well in advance from these dates specified. Invoice No. & date Commission amount @3.75% of FCB value Tenative date of remittance ($) Exp./4/77 dt. 26-3-77 2543.23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for the supply of ACSR Cables, submitted to you against your above tender enquiry through their agents Messrs. Associated Commercial Agencies, Lahore. In consideration of the above, we hereby confirm that on demand from you in writing, we will release to you the amount of this bond, namely, US Dollar 186,640, should Messrs. Eurometal Limited, London, not fulfil their obligations to you under the terms and conditions of their aforesaid offer. The validity of this bond shall remain valid till the 15th February, 1977, or 45 days from the date of tender opening, whichever be earlier, although the same bond can be revalidated, at your request on the understanding that such request will be made in writing latest 5 days from the expiry date herein. For THE CHARTERED BANK (Sd.) Manager. WE CONFIRM THAT THIS BOND IS COVERED BY THE TERMS OF OUR BLANKET INDEMNITY Dated 23rd September, 1975. For and on behalf of COUTINHO, CARO & CO. LTD. And a letter dated the 27th November, 1978, being the annexure to the said affidavit-in-reply at page 18 and is set out hereunder : ALUMINIUM CABLES & CONDUCTORS (UP) PRIVATE LIMITED. 2-A, Shakespeare Sarani, Calcutta-700 016. Cables: "STANCOND" PH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be obtained by the company as admitted in the letter dated the 29th of April, 1978. The company's contention that the said agreement for commission was without consideration has no substance and Mr. Nag referred to paras. 6,9 and 10 of the winding-up p3tition and para. 10 of the affidavit-in-reply and submitted that consideration is clearly pleaded and also supported by the correspondence. In fact, the petitioning creditors sponsored for higher rates as would appear from pages 13 and 15 of the winding-up petition. The said contract was negotiated through the Pakistani agent and the Indian agent of the petitioning creditor as would appear from the correspondence. In clause 9 of the letter dated the 15th of January, 1977, written by WAPDA through the Pakistani agent of the petitioning creditor, it is clearly admitted that the petitioning creditor is the principal of the Pakistani agent and the company's letter to the petitioning creditor dated the 22nd of January, 1977, has specifically referred to the said purchase order dated the 15th of January, 1977, and confirmed the agreement to pay the petitioning creditor's commission at the rate of 2.75% of the F.O.B. value of the quantity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that an insolvency petition is a right arising not out of a contract but from the statute and the same principle applies to the present case as admittedly the company has failed to pay the commission due to the petitioning creditor in respect of the said contract and the claim is admitted by the company in the correspondence and, in fact, the company issued the debit notes but remittance was subject to the permission of the Reserve Bank of India which was to be obtained by the company in due course and the company has failed to do so. Therefore, maintaining the present winding-up petition which is a right under the statute to declare a company to be insolvent and liable to be wound up, being unable to pay its debts, is a right under the statute and cannot be affected by the question of permission of the Reserve Bank of India, which the company has deliberately failed to obtain by their own default. Mr. Nag also referred to the Division Bench decision of this Court in Bangasri Ice and Cold Storage Ltd. v. Kali Charan Banerjee, AIR 1962 Cal 613, where it has been held that in a winding-up petition, the disputes sought to be raised as to the debt due to the petitioning creditor by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de any application to the Reserve Bank of India for remittance of the said amount to the petitioning creditor as per their letter dated the 22nd of January, 1977, and 29th of April, 1979. It was the petitioning creditor's duty to produce a document to show that such a permission has been refused and it can be safely presumed that the company has not done anything of that sort by way of application before the Reserve Bank of India for necessary permission to remit the said amount, admitted to be payable to the petitioning creditor under the contract as the commission due to the foreign agent. The petitioning creditor has served notice on the company to produce the necessary documents for F.E.R. Act, permission but the company has failed to produce any document whatsoever and, therefore, it should be inferred that the company has deliberately made no application for payment to enable it to pay to the petitioning creditor and, as such, it must be held that the company is unable to pay its debt and liable to be wound up and at this stage it cannot be said that the present application is an abuse of the process of the court. On the other hand, the disputes sought to be raised by the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case. Thereafter, Mr. Mukherjee submitted that the statutory notice under section 434 of the Companies Act, 1956, is defective as the claim is made in dollars and no specific amount in rupee has been stated. In my view, there is no substance in the said contention as the said equivalent amount can easily be determined by calculating the amount at the prevailing exchange rate of dollar in rupee. And lastly, Mr. Mukherjee submitted that the debt is not presently payable as the permission of the Reserve Bank of India under the F.E.R. Act is necessary. That again is also fallacious as the liability of the petitioning creditor, specifically in unequivocal terms, has been accepted by the company by issuing the credit notes in favour of the petitioning creditor as is recorded in the company's letter dated the 29th of April, 1978, which was payable to the petitioning creditor by remittance to be made by the company after obtaining the necessary permission from the Reserve Bank of India. If the company has failed to apply for the necessary permission and obtain the same in due course, that does not mean that the debt is not presently payable. It is due to the default of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th of April, 1978, addressed to the petitioning creditor and its Indian agent respectively. The amount of the debt due is admitted and because the same is expressed in dollars, that does not convert an undisputed debt to a disputed debt on bona fide ground and, lastly, it appears that the company has performed the contract and abandoned a portion of the contract by mutual consent of the WAPDA and there is no dispute that the company has realised the amount from the WAPDA against the letter of credit opened by WAPDA in respect of the said contract which was admittedly negotiated and entered into through the agency of the petitioning creditor and its Pakistani and Indian agents, as would appear from the correspondence set out before. Therefore, the present winding-up petition being a statutory right for the winding-up of an insolvent company which is unable to pay its debt in spite of statutory notice being served for public interest, there is no bar in entertaining the winding-up petition. The winding-up petition is not ordinarily a case for realisation of the dues, even a suit for realisation is maintainable, but no decree can be passed and executed in favour of a foreigner withou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
