9911796707
TMI Blog2012 (6) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... d company. The registered office of the respondent-company is situated at D. No. 16-130/12, JRD Tata Industrial Estate, Autonagar, 3rd Cross Road Extension, Vijayawada. (c) Ficom Organics Ltd., was a company incorporated under the Act in the State of Maharashtra. The said company was engaged in the business of manufacture, production and distribution in fertilizers, pesticides, insecticides, etc. The said Ficom Organics Ltd., came to be amalgamated with the petitioner-company as per the orders of this court dated April 10, 2007, in Company Petition No. 21 of 2007, connected with C. A. No. 1748 of 2006 and orders of the Bombay High Court in Company Petition No. 94 of 2007 connected with C.A. No. 1211 of 2006 and Company Petition No. 96 of 2007 connected with C A. No. 1207 of 2006, dated July 24, 2007. As per the scheme of amalgamation, Ficom Organics Ltd., came to be amalgamated with the petitioner-company and thereby, the petitioner-company acquired assets and liabilities of Ficom Organics Ltd. 3. The respondent-company placed a purchase order dated December 6, 2006, with Ficom Organics Ltd., for supply of 100 kgs of Henaconazole-tech valued at Rs. 9,59,640. Ficom Organics Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal counter. 5. The sum and substance of the counter/additional counter, in brief, is : The notice issued under section 434 of the Act is defective and therefore, the petition is liable to be dismissed in limine. The amount claimed by the petitioner-company is not correct as Ficom Organics Ltd., did not deduct the amount towards discount and commission that was promised to be paid to the respondent-company as per the existing trade and practice and adjust the same out of the claimed amount. When the same was brought to the notice of the petitioner-company, it also promised to look into it and carry out necessary adjustment. The petitioner has not placed any material to show that the respondent-company was unable to pay several debts due to the named creditors. The petitioner filed cheque bouncing cases against the respondent-company in respect of debt of Rs. 9,59,640 covered under two cheques. As he availed an alternative remedy to recover the whole debt, it is impermissible for the petitioner to seek recourse under the provisions of the Companies Act seeking an order of winding up of the respondent-company. The debt claimed by the petitioner in the company petition is based on n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-company admitted the liability and issued two cheques and on presentation of the same, they came to be dishonoured and thereupon, the petitioner-company initiated proceedings under section 138 of the Negotiable Instruments Act, 1881, by filing complaints before the XI Additional Chief Metropolitan Magistrate, Secunderabad and the said complaints are pending adjudication. He would also submit that the respondent-company confirmed the balance due to the petitioner-company on March 30, 2009 and also in subsequent letters dated June 13, 2009 and July 13, 2009. Learned counsel refers the letter emanating from the managing director of the respondent-company acknowledging the debt of Rs. 9,59,640. For better appreciation, I may refer the relevant portion of the letter dated July 13, 2009, which reads as hereunder : "To General Manager-Legal, M/s. Coromandel Fertilisers Ltd., 1-2-10,Sardar Patel Road, Secunderabad-500 003. Sir, Kind attention Mr. P. Varadarajan Sub : Payment of our dues of Rs. 9,59,640 regarding Ref : Your letter dated May 11, 2009 and our letter dated June 13, 2009 With reference to our above letter, we inform that due to set back in recoveries arising out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chooses not to pay that particular debt. (See A Company, In re [1894] 94 S.J. 369). Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely. (See Tweeds Garages Ltd., In re [1962] 32 Comp. Cas. 795 (Ch. D) ; [1962] Ch. 406). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and, thirdly, the company adduces prima facie proof of the facts on which the defence depends." 11. Learned counsel appearing for the respondent submits that the petitioner-company allegedly supplied the pesticides for agriculture under invoice-cum-delivery challan dated December 11, 2006 and as per the terms and conditions indicated in the invoice, the dispute, if any, is subject to Mumbai jurisdiction and therefore, this court has no jurisdiction to entertain the petition seeking an order of winding up of the respondent-company. He would also submit that B. Gopala Krishna who has fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding up. 14. According to learned counsel, the registered office of the respondent-company is at Vijayawada which is within the jurisdiction of this court and therefore, this court has jurisdiction to entertain this company petition. It is further contended by the learned counsel that the managing director of the petitioner-company is empowered to delegate any of his powers except the powers mentioned in clauses 4, 7 and 8 of the power of attorney and the special power of attorney executed by the managing director in favour of B. Gopala Krishna, who instituted the company petition does not come within the exception clauses and therefore, the said Gopala Krishna has valid power to institute winding up proceedings against the respondent-company under the provisions of the Act. 15. Before entering into the merits of the petition, two preliminary points are required to be considered. Firstly, whether this court has territorial Jurisdiction to entertain the petition and secondly; whether Mr. B. Gopala Krishna is competent to file company petition on behalf of the petitioner-company seeking an order of winding up of the respondent-company. 16. Point No. 1 : Section 10 of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company in the meeting held on January 18, 2006, granted specific powers to Mr. V. Ravichandran, detailed in the draft deed of power of attorney. The resolution finds place at page No. 12 of the material papers filed along with the petition and it reads as hereunder : "Resolved ... That the company do grant to Mr. V. Ravichandran the specific powers detailed in the draft deed of power of attorney tabled at the meeting and initialled by the chairman for the purpose of identification. That Mr. A. Vellayan, chairman, be and is hereby authorised to execute and deliver the said deed of power of attorney on behalf of the company and that the common seal of the company be affixed to the said deed of power of attorney in the presence of any one director and the company secretary in accordance with the articles of association of the company. That company secretary be and is hereby authorised to take and do all such actions/things as necessary, to give effect to the aforesaid appointment including steps required to obtain approvals, if any, required in this regard". 20. The Ficom Organics Ltd., came to be dissolved and its assets and liabilities came to be vested with the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. (9) To obtain copies of documents and papers from any court of India and offices of the court. (10)To file appeals, revisions and/or reviews for and on behalf of the company before any court in India and to appoint advocates and sign vakalats and to accept service on behalf of the company in connection with such proceedings as abovementioned. (11)Subject to the approval of the chairman or any director of the company, to compromise or settle the cases by receiving dues either by way of cheques/demand drafts or other means on behalf of the company and issue proper receipts so as to bind the company in regard to the above proceedings. (12)Generally to do all other lawful acts, deeds, things and matters as the attorney may deem fit and necessary for the exercise of the aforesaid powers vested in him. (13)In this deed, the term 'court' shall mean and include any court, Tribunal or other judicial or quasi-judicial authority." 22. Mr. Ch. Ramesh Babu is correct in pointing out that the power to file suits and/or proceedings for the recovery of the amounts due or becoming due cannot be held to embrace the power to institute proceedings for winding up under the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
