TMI Blog2005 (4) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... there was an outstanding amount of US $ 62,046.96 as due and payable by the respondent to the petitioner-company. It is further the case of the petitioner that a cheque for a sum of US $ 22,000 towards part payment was issued by one Glenrich Ltd. being one or the group companies of the respondent herein; the said cheque was presented on 5-4-2000 but the same has been dishonoured. On 5-5-2000 another group company, namely, Admiral Shipping Ltd. which is respondent in Company Petition No. 196 of 2004 issued a letter, inter alia, admitting the liability and promising that the payment will be made by third week of 2000. The said letter dated 5-5-2000, inter alia, reads as under: "However, we would like to request you to bear with us till 3rd week of May, 2000 by which time Mr. Shabbir Rangwala will be in London and will effect your payment immediately." 4. However, in spite of the said assurance since the payment was not forthcoming, on 13-6-2000 another letter was addressed by the petitioner demanding the aforesaid payment. On 14-6-2000 once again the said company Admiral Shipping Ltd., the respondent in Company Petition No. 196/04, requested time for making payment but at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 433 and 434 of the Act, for winding up of respondent-company. An affidavit in reply has been filed on 24-3-2005 of one Mr. Shabbir Y Engineer in which it has been, inter alia, contended that the marine lubricants were not delivered or utilised by the company and invoices for the same were also raised by the petitioner in the name of Glenrich Ltd. UK as the orders were placed by Glenrich Ltd. It was, thus, contended by the respondent-company that it is not at all liable for the payment claimed by the petitioner. It has been contended that the petition filed as against respondent-company is frivolous and, thus, the same should be decided. 7. It has also been contended that the petitioner has already filed a suit for the recovery of the said amount being Summary Suit No. 3040 of 2004 and, therefore, the present petition should not be entertained. In para 8 of the affidavit in reply it has been denied by the company that the company is one of the companies under the name of Sunrich group of companies. It has also been contended that the respondent-company is a separate legal entity and acts independent to the said Glenrich Ltd. In the said affidavit in reply thereafter there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent-company has tendered affidavit dated 24-3-2005 of one Mr. Shabbir Engineer. Both these affidavits dated 17-3-2005 and 24-3-2005 are taken on record. Matter as thereafter heard once again. 9. The learned counsel at the time of earlier hearing on 11-3-2005 advanced three basic contentions. It has been contended by the learned counsel for the respondent-company that the respondent is not liable to make payment of the aforesaid amount as the respondent-company has not placed any purchase orders. It has been contended that the purchase orders, which are signed by the company, are signed in their capacity as an agent and not as principal. It has been contended that the purchase orders are placed by the petitioner as an agent of Glenrich Ltd., UK and, thus, the liability is not of respondent-company but that of the third party, namely, Glenrich Ltd., UK. It is also contended that though the invoices are issued in the name of the company and they have received the same still they are not liable to make payment of the aforesaid amount because orders are not placed by them. 10. The learned counsel Mr. Palan has contended that the liability is not that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent company was acting as an agent. It has been further contended that the petitioner has not filed the rejoinder controverting the various averments made by the petitioner and, therefore, the same be taken as true and correct and the petition should be dismissed on the ground that no ground is made out for the purpose of winding up of the respondent-company. 13. By an additional affidavit dated 24-3-2005 the company has once again raised the grievances about the inspection of the documents. In fact on 23-3-2005 the learned solicitor of the respondent-company has addressed a letter to the petitioner and has, inter alia, contended that the petitioner has not given inspection of the invoices to the respondent-company despite being repeatedly called upon to do so and called upon the petitioner to produce originals at the time of hearing of the petition. Even in respect of the other documents also once again the grievance of the inspection has been made. This grievance is deliberately made even after furnishing the xerox copies of the documents and hearing the matter on merits at length on 11-3-2005. 14. I have heard the parties at length and considered the rival submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiffs themselves in the plaint the question that arises for determination is whether any cause of action has accrued against the 3rd defendants who had only acted as agents for and on behalf of 2nd defendants. The agent cannot personally enforce nor be bound by, contracts on behalf of principal. Ordinarily an agent contracting in the name of his principal cannot be sued on such contracts. The agent in such circumstances is also not entitled to sue in his name. This position emerges from section 230 of Contract Act... ****** It is apparent that the principal is disclosed and has been impleaded as 2nd defendant. It is further admitted case in the plaint that the 3rd defendant acted as an agent of the 2nd defendant and the container was accepted by the 3rd defendant on behalf of the 2nd defendant. In the circumstances, where the principal is disclosed and has been impleaded as defendant No. 2, no action would lie against the defendant No. 3 who are only agent of defendant No. 2. There is not even a whisper in the entire plaint that the 3rd defendant acted independent of 2nd defendant or that the container was accepted by the 3rd defendants in the capacity of their own or the 3r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments and after doing so and having argued the matter at length on 11-3-2005, the learned advocate has indulged in creating evidence by addressing another letter raising still a grievance to inspection being letter dated 23-3-2005 and by affidavit dated 24-3-2005 the same has been filed in this Court. The matter was not only heard but learned counsel Mr. Palan has also advanced the arguments. The said arguments proceeded on the footing that the grievance of the inspection is fully resolved. Mr. Palan in fact has relied upon the very same compilation to argue in support of his case but still these grievances of inspection is reiterated by the aforesaid letter. 18. There is also another aspect in the matter which also indicate that the respondent-company is not honest, i.e., the compilation of documents which were furnished to the respondent-company, inter alia, contains a document which is a xerox copy of the greeting card issued to the petitioner by the respondent-company. This card, inter alia, states that there are various companies of Mr. Shabbir Y Engineer and the list of the companies are given on the said card include the respondent-company in both the present peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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