TMI Blog1994 (3) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... made arrangement for re-export of the said consignment back to America. It is alleged that later on the respondent company agreed to have the delivery of the said consignment on the prices mentioned in the invoices but required the petitioner company to pay the demurrage charges to which the petitioner agreed and a fresh set of documents were sent to the respondent company for taking delivery of the goods and the respondent took the delivery of the goods after paying the customs duty on the basis of the price quoted in the invoices. It is averred that despite the goods having been utilised by the respondent company, the respondent company did not make the payment and thus, after serving the statutory notice and on the failure of the respondent company to make the payment within the stipulated period, the present petition was filed. It was mentioned that the respondent company is liable to pay interest on this commercial transaction at 20 per cent, per annum and the total amount due from the respondent company as on October 5, 1991, is 26,167 US dollars. The respondent contested the petition pleading that the petition is not maintainable as there is no admitted liability of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988, the petitioner requested the respondent-company to accept the shipment and the petitioner was making efforts to get better prices for the material. The petitioner, however, then finding that a better price of the material was not available made arrangement to have the whole shipment returned to America. On December 10, 1988, the respondent company informed the petitioner that it would be very difficult for the petitioner company to get the goods transferred back to America and it suggested three conditions that new invoices be sent directly to the respondent with correction of the invoice for the said item P-8275 and that after the consignment was cleared, the respondent will send the money to the petitioner and demurrage amount will be intimated to the petitioner for payment by the petitioner. It was mentioned by the respondent in this document that it was willing to take the delivery of the consignment on the above terms in view of their past relationship. In response to this telex, the petitioner had sent telex message dated December 12, 1988, in which it did not agree for reducing the price and incur the losses and made a counter-offer that the price of the said item ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany had agreed to get the goods released and had asked for payment of demurrage charges by the petitioner company and on that basis the shipping documents were directly sent to the respondent company to which reference is made in this letter dated March 29, 1989. After the goods had been got released by the respondent company and the respondent company had not paid the amount to the petitioner, the petitioner had sent a letter dated October 26, 1989, in which it was mentioned that the consignment had been cleared by the respondent. The details of the invoices and the prices mentioned in the invoices and the total amount of US dollars 16,992.21 were given in the letter. The reply to this letter was sent by the respondent company dated November 2, 1989, to the following effect : " Reference your message regarding pending payment. We have not taken full delivery of the goods from customs. If you want us to pay for the deliveries which we have taken, we can make part payment. As you know, we have to produce the Customs Bill of Entry before any despatch of money." It is significant to mention that in this communication by the respondent company, there is no dispute raised tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges. It is contended that there is no document to show that the respondent had agreed to take the delivery of the consignment on the price already agreed upon, hence there was no agreement to have the goods on the prices indicated in the invoices. This contention of learned counsel for the respondent is misconceived because even if there is no document indicating such agreement the conduct of the parties as is evident from the various communications exchanged between the parties, detailed out above, make it quite evident that the delivery of the goods was taken by the respondent on the prices indicated in the invoices. In case no price had been agreed upon the respondent in his communication would have disputed the facts as mentioned in the communication of the petitioner wherein details of the invoices and the prices have been indicated and the respondent would not have just requested for some more time for making the payment. It is only as an afterthought that the respondent in subsequent reply to the legal notice issued to the respondent that the respondent came up with the plea that the price agreed in respect of that particular item was US dollar 16.59 and not US dollars 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such permission. On similar facts the Calcutta High Court in the case of Eurometal Limited v. Aluminium Cables and Conductors ( U.P. ) P. Ltd. [1983] 53 Comp. Cas. 744 , had held that it was for the'party which is to remit the foreign exchange to have obtained the necessary permission under the Foreign Exchange Regulation Act from the Reserve Bank of India and on failure of the party to obtain such permission and to remit the money due even after statutory notice under section 434 of the Indian Companies Act had been served, the resort to winding-up of such a company can be had. Counsel for the respondent has referred to Jugalkishore Benarsidas v. South India Saw Mills ( P. ) Ltd. [1975] 45 Comp. Cas. 273, where the Kerala High Court had held that the fact that the company is unable to pay its debt does not necessarily entitle the court to order winding-up of the company as the discretion to pass such an order, even in the case of the inability of a company to pay its debts, is by section 433 vested in the court and that discretion has to be exercised judicially. There is no dispute about this principle of law. In the present case the petitioner company had by mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany. Learned counsel for the respondent has then referred to Ram Kishan v. Kanwar Papers Private Ltd. [1990] 69 Comp. Cas. 209 (HP) in which it was held that where there was serious dispute between the parties on each essential fact which necessitated a trial in appropriate civil proceedings, the petition for winding-up was not the remedy. It is a well-established principle of law that if there is a genuine bona fide dispute raised with regard to alleged debt, obviously resort to winding-up proceedings is not permitted. But in the present case, prima facie , it is quite clear that there is no bona fide dispute being raised with regard to the existence of the debt which the respondent has failed to clear despite statutory notice. Counsel for the petitioner has brought to my notice a number of judgments where it has been held that even if some amount of the debt is disputed, still a winding-up petition can be brought on failure or neglect of the debtor to clear at least the admitted amount of the debt on service of statutory notice. Kudremukh Iron Ore Co. Ltd. v. Kooky Roadways P. Ltd. [1990] 69 Comp. Cas. 178 (Kar), is one of such judgments. In the said case, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1962] 32 Comp. Cas. 64, it was held that where a company is liable to only part of the debt and admits liability to repay the substantial part of the debt and neglects to pay that amount despite statutory notice, the company is deemed to be commercially insolvent. In Indian Turpentine and Rosin Co. Ltd. v. Pioneer Consolidated Co. of India Ltd. [1988] 64 Comp. Cas. 169 , this court has held that even assuming there was some genuine dispute about the interest claimed to be due from the respondent to the petitioner and the respondent had no reasonable explanation for its inability to pay the balance of the principal amount and in any case it could not legitimately deny its liability to pay any interest at all to the petitioner, it was held that the respondent company's inability in the face of its liabilities, to comply with the directions of the courts on various occasions to deposit certain sums showed that the company was in financial straits and was unable to pay its clear and undisputed debts. Learned counsel for the respondent has argued that in case the liability of the respondent company is a contingent one, i.e. , subject to an agreement regarding the price of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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