9911796707
TMI Blog2007 (9) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... consultants since 1992. For the purpose of convenience, the respondent, who had filed the company petition for winding up, is referred to as "the petitioner" and the present appellant is referred to as "the company". 3. According to the case of the petitioner, the services of the petitioner were availed by the company as consultants. The terms reflected in the correspondence between the two were accepted as apparent from the confirmation letter dated 3-5-1993. The rate of consultancy fees had been fixed as per the letter of the company dated 12-4-1993 and the reply of the petitioner dated 13-4-1993. The services of the petitioner were also engaged by the company to negotiate with AFT and United Airlines as per the terms reflected in the letter of engagement dated 17-1-1997. 4. The amount payable to the petitioner on account of the on-going consultancy services rendered by the petitioner and the amount payable relating to the other transactions had remained unpaid for a long period. Accordingly, the petitioner raised two invoices, bearing Nos. ABA-100324 and ABA-100325, both dated 18-4-1997, for US dollars 1,57,959 and 1,11,200 respectively, in all 2,69,159 US dollars. Invoice No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Airlines, by their letter dated 17-1-1997. The respondent had made it very clear that they would pay a sum of US dollars 10,000 whether the deal is successful or not and pay additional performance payment of US dollars 50,000 per aircraft if the deal is successful. The respondent states that the petitioner failed to settle disputes that arose between the respondent and the Air Financing and Trading BV and United Airlines. Both Air Financing and Trading BV and United Airlines have filed proceedings in this Hon'ble Court. The respondent states that inasmuch as the petitioner had not made any attempts to settle the issues between the respondent and Air Financing and Trading BV and United Airlines and the deal was not successful, there is no question of the petitioner claiming any amounts from the respondent. Hence, the allegation that based on the on-going consultancy services arrangement and based on the letter of engagement dated 17-1-1997, and as per the fees agreed to be paid by the respondent-company to the petitioner, on two invoices dated 18-4-1997, that were raised by the petitioner remained unpaid though payment was due and payable within seven days of the invoice is abso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Judge was not justified in admitting the company petition and directing publication of the advertisement. 14. Learned counsel appearing for the respondent has submitted that the materials on record clearly indicate that the company had failed to pay the dues of the petitioner, in spite of several opportunities and, therefore, the learned Single Judge was justified in admitting the company petition and directing publication of the advertisement. He had further stated that even during the pendency of the appeal, the company had failed to pay the amount in spite of the direction of the appellate court, which would only indicate that the company has neglected to pay its debt. 15. Counsel for both the parties have referred to several decisions of the Supreme Court, Madras High Court and other High Courts. It is necessary to notice some of them before entering upon a discussion regarding the contentions raised by the parties on merit. 16. The decision reported in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. AIR 1971 SC 2600, is a decision relied upon not only by counsel for both the parties, but also by the Supreme Court and several High Courts and it is, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Chemical Ltd. [1994] 79 Comp. Cas. 835 ; [1994] 3 SCC 348 in support of his contention that where there is a bona fide dispute relating to debts, recourse to winding up proceedings may be inappropriate. The decision of the Supreme Court in Amalgamated Commercial Traders (P.) Ltd.'s (supra) was relied upon in the subsequent decision of the Supreme Court in Madhusudan Gordhandas & Co.'s case (supra). The subsequent decision of the Supreme Court in Pradeshiya Industrial & Investment Corpn. of Uttar Pradesh's case (supra) is based on the observations made in Madhusudan Gordhandas & Co.'s case (supra). It is, therefore, not necessary to extract in extenso from the aforesaid two decisions. 18. Learned counsel for the appellant has concentrated very much upon the fact that the appellant-company has raised bona fide dispute regarding the payability of the amount claimed by the petitioner and, therefore, the company petition should not have been admitted. It has been submitted by him that it cannot be said that the defence raised by the appellant-company is mere moonshine and not bona fide one. It has been further submitted that the learned Single Judge has not based the conclusion on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in five star. (b )All subsistence. (c )Air travel. (d )All out of pocket expenses whilst away from UK base on NEPC business. (e )Professional disbursements as deemed necessary. Payment terms A dollars 20,000 retainer (u-front payment deposit) would be required. Invoices would then be presented monthly in arrears for all fees and expenses payment required within seven days of invoice. As involvement diminishes the retainer would be reduced and then eventually eliminated. Upon receipt of the retainer payment we will commence work as soon as practical. If you need a proforma invoice for the dollars 20K then let me know immediately . . . ." 22. Thereafter, admittedly the company wrote the letter dated 3-5-1993, which is to the following effect : "We are pleased to appoint you as our consultant for air tax project as we have decided to go in for air taxi operations after going through the first stage of the consultancy report." 23. As already indicated, it is not the case of the company, not even a whisper, that after the correspondence dated 12-4-1993 and 13-4-1993, there was any other correspondence contrary to the terms offered in the letter dated 13-4-1993 and simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being argued in the course of hearing of appeal that mere raising of invoices would not indicate existence of debt or payment of amount, it must be noticed that there is no whisper anywhere that the company had uttered or raised any protest regarding the claim made by the petitioner. Even subsequently, when a specific notice was served, no specific reply was given, even though the contents of the notice have been denied, rather in vague terms. 27. Subsequently, at the time of discussing about the transactions relating to AFT and United Airlines, in the letter of the petitioner dated 17-1-1997, it was indicated that the outstanding to the petitioner was approximately 1,48,000 US dollars. The petitioner had indicated the appellant-company to pay 50,000 US dollars or more of the said money. While accepting about the terms and conditions in the matters relating to AFT and United Airlines and agreeing to pay 10,000 US dollars as such and 50,000 US dollars as additional performance payment, there was no caveat or no protest regarding the claim of the petitioner that approximately 1,48,000 US dollars was due on that date. On 20-1-1997, the petitioner, while confirming about the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner was repeatedly asking about the payment of such amount but the appellant-company has maintained a sphinx like silence. In such a background, the ratio of the subsequent decision of the Supreme Court relied upon by the appellant-company is not applicable to peculiar facts of the present case. 30. Learned counsel for the appellant has also pointed out that so far as the invoice ABA-100325 is concerned, the claim was misconceived. In the above context, counsel for the appellant has referred to the letter written by the petitioner on 21-4-1997, and has pointed out that the letter of the petitioner clearly indicates that the dispute relating to the two aircrafts in question relating to United Airlines had been settled not through the negotiations made by the petitioner but otherwise and, therefore, there was no justification for the petitioner to claim 1,11,200 dollars on that score. To the above extent, the counsel for the appellant is justified inasmuch as the said letter of the petitioner had indicated : ". . . During this visit you agreed with all charges to date and agreed with the terms of the amicable settlement thus the requirements as far as ADA are concerned wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
