9911796707
TMI Blog2009 (6) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifications. The terms and conditions of such leasing were recorded in writing subsequently in an agreement executed on 30-1-1998. The agreement was, however, given retrospective effect from 1-7-1997. The agreement was renewed from time to time and is still in force which would appear from dealings and transactions and the course of conduct by and between the parties. The petitioner had in course of dealings and transactions raised its invoices for lease rentals in respect of the containers, which were duly accepted by the Company without any objection. The Company was bound and liable to pay lease rentals and other dues to the petitioner on monthly basis within 30 days from the date of submission of the invoices. After giving credit to the Company for all sums paid by and/or received on its behalf and/or credited to have been paid, a sum of US $77,667.07 became due and payable by the Company to the petitioner as on 30-4-2001. Thereafter, the Company had approached the petitioner to allow it to pay the outstanding amount in instalments. At the request of the Company, the petitioner had agreed to accept the payment of the due amount by monthly instalments of not less than US $4,750 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir existence of the claim i.e., lease agreement dated 1-7-1997 and the subsequent amendments thereto have been denied. It claims that the signatures on behalf of the Company on the agreement have been fraudulently obtained. It further states that Sri Saileshwar Ghosh was never a Director of the Company as alleged. The Company denies that the petitioner ever raised any Bills on the Company from time to time for lease renewals. The acceptance of the invoices is also denied. The Company also states that there was no occasion for the petitioner to raise any Bills on the Company as there was no business transaction between the Company and the petitioner. The invoices were always raised on Astra Marine Pvt. Ltd. of Singapore. The Company also denies the averments made in Paragraphs 11 to 13 which relate to the amount due and the request made by the Company for payment of the outstanding amount in instalments. The statements of account attached to the Company petition are also denied by the Company. 5. The petitioner in its affidavit-in-reply claims that all along the Company was represented by Mr. Saileswar Ghosh, Mr. B. Chatterjee and Mr. J. Chatterjee. Saileswar Ghosh and B. Chatterje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge are not non-existent. The agreement on the basis of which business transactions between the company and the petitioner are sought to be established is denied. The signatures on the agreement of admission of liability are denied. It is also denied that Sri Saileswar Ghosh was at any stage is a Director of the Company. Any link between Astra Marine Pvt. Ltd. and Astra Marine PPE is denied. The receipt as well as acceptance of invoices is denied. The signatures on the agreements are stated to have been forged on behalf of the company. The seal of the company is not authentic. Sri Saileswar Ghosh had no authority to execute any agreement on behalf of the company. In such circumstances, the learned Single Judge erred in concluding that any admission made by Saileswar Ghosh would bind the company. The principle of law laid down in Freeman & Lockyer's case (supra) would not be applicable in the facts of this case. 9. On the other hand, Mr. Ahin Choudhury, learned senior counsel appearing for the respondent, submitted that the petitioner had entered into business transactions with the company after taking into consider-ation the profile of the company in which the company had he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted on by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed on him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation. The representation, when acted on by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract. . . . ." 11. These principles have been applied by the learned Single Judge to the facts of the present case. We are of the considered opinion that the aforesaid proposition of law would not be applicable in the facts and circumstances of this case. In the aforesaid case Willmer, L.J. sets out in detail the sequence of events by which Mr. Kapoor was seen as the visible face of the company. It was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by Diplock, L.J. would be applicable only in cases where there is clear evidence leading to the only inference that the agent is acting on behalf of the principal to the knowledge of the principal. In our opinion, the pleadings as well as the documents presented in this case do not lead to the only inference that Saileswar Ghosh had the actual or ostensible authority to admit the liability on behalf of the company. The entire evidence presented before us has been disputed. The signatures of Saileswar Ghosh on behalf of the company have been disputed. The receipt of the invoices by the company has been disputed. The authenticity of the accounts presented by the petitioner-company have been disputed. On the material presented, sitting in appeal against a judgment and order passed by a learned Single Judge, exercising jurisdiction under the Companies Act, 1956, for winding up of a company, it is, therefore, not possible to hold that Sri Saileswar Ghosh has actual or ostensible authority to execute the agreement dated 11-5-2001. There seem to be too many uncertainties in the evidence presented by the petitioner, to be accepted in summary proceedings, before the company Court. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediately or at a future date and that the inability referred to in the expression "unable to pay its debts" in section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilised merely as a mean for realising debts due from a company. 21. The debt under section 433 of the Companies Act must be a determined or a definite sum of money payable immediately or at a future date. We are informed that the financial position of the appellant is sound. ****** 25. The rules as regards the disposal of winding up petition based on disputed claims are, thus, stated by this Court in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. AIR 1971 SC 2600. This Court has held that if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The principles on which the Court acts are : (i)that the defence of the company is in good faith and one of substance; (ii)the defence is likely to succeed in point of law; and (iii)the company adduces prima facie proof of the facts on which the defence depends." 14. We, therefore, find merit in the appeal. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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