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TMI Blog2011 (8) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by them from time to time. The respondent deals in manufacture and sale of steel, strips, and cables etc. The respondent engaged the petitioner in transportation of its material/ goods from one place to another. The petitioner opened a running account in respect of transactions with the respondent. As and when the respondent availed the transport service of the petitioner on credit, the petitioner debited the freight charges to the account of the company and credited its accounts as and when the respondent made payments. During the course of business transactions, the respondent-company became due in a sum of Rs. 7,12,269 towards freight charges to the petitioner. The respondent is also liable to pay interest at the rate of 21 per cent. per annum, on delayed payment as per clause (2) of the bills raised by the petitioner against the respondent. Thereby, the respondent became indebted to the petitioner firm in a sum of Rs. 7,12,269 towards principal amount and Rs. 2,99,152 towards interest. 3. The respondent-company is one of the group companies of Surana. There is a functional and financial integrity between the respondent-company and M/s. Surana Strips Ltd. M/s. Surana Strips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the consignee, i.e., Paramount Cables situated at Delhi. The respondent-company has a counter claim against the petitioner to a tune of Rs. 14,19,404 being the value of the material, i.e., 70 boxes of jointing kits. The petitioner cannot be permitted to link the liability of one company of Surana group to the liability of the respondent-company since each company has got separate entity, as per the provisions of the Act. The respondent-company being one of the Surana group companies is not denied. M/s. P. M. Telecom, one of M/s. Surana group companies, on October 11, 2001 booked consignment of jointing kits TSF-2 to be delivered to SDE, (SD), Ghatkopar, Mumbai through the petitioner. In each lorry, 70 boxes containing jointing kits worth Rs. 6,75,192 were transported. The petitioner failed to deliver the consignment to the consignee. The petitioner, vide its letter dated November 13, 2001, addressed to M/s. P. M. Telecom (Surana group of companies) stated that the consignment of 70 boxes of jointing kits booked under LR Nos. 028587 and 28588 have been retained in exercise of its right to recover the unpaid dues of all the companies stated therein. The respondent requested the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny petition came to be admitted by an order dated June 14, 2005. The respondent assailed the order of admission of the company petition by filing O. S. A. No. 45 of 2005. The said OSA came to be dismissed on March 6, 2006, confirming the order of admission of the company petition for winding up of the respondent-company. 7. Proof of publication has been filed on August 29, 2005. On behalf of the petitioner, affidavit in lieu of chief examination of PW1-Bajarang Singh Takur has been filed and 13 documents were exhibited as exhibits P1 to P13. On behalf of the respondent, one witness was examined as RW1 and ten documents were exhibited as exhibits R1 to R10 apart from marking two documents as exhibits X1 and X2. 8. PW1 is the Regional Manager of the petitioner firm. Exhibits P1 is the power of attorney given to PW1 authorising him to file the proceedings on behalf of the petitioner firm. Exhibit P2 is the copy of the registered partner-ship deed dated June 18, 1996. Exhibits P3 and P4 are the certificates issued by the Registrar of Firms. Exhibit P5 is the certificate of registration of the respondent-company issued by the Registrar of Companies under the provisions of the Act. Exh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis on exhibit P7 addressed by the G. M. (Operation) of Surana Steel Limited. The letter is styled as "debt confirmation letter". The liability of the respondent-company to the petitioner firm has been stated in the said debt confirmation letter. Since much emphasis has been laid by learned counsel, I deem it appropriate to refer the text of the letter, which reads as hereunder : "To Surat Goods Transport Service Viraj Impex House, 47, P. D. Mello Road, Mumbai-400 009. Dear Sir, Sub : Debt confirmation This has reference to your letter dated October 23, 2001, regarding your dues in our various group companies. The present financial position of the company is not sound we are not able to get financial assistance from our financial institutions, hence we could not be able to settle freight bills of various transporters. We confirm below the outstanding dues as on date of our various companies. Sr. No. Amount (Rs.) 1. Golkonda Engg Entp. Ltd. 6,11,437 1,00,832 2. P. M. Telecom 14,600 3. P. M. Strips Ltd. 14,705 4. P. M. Strips Ltd. 1,20,585 5. Kaveri India Ltd. 57,564 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his submissions, reliance has been placed on the decisions of the Supreme Court in Pradeshiya Industrial & Investment Corpn. of Uttar Pradesh v. North India Petro Chemical Ltd. [1994] 79 Comp Cas 835, Mediqup Systems (P.) Ltd. v. Proxima Medical System GmbH [2005] 124 Comp Cas 473/59 SCL 255 (SC), Ahmedabad Electricity Co. Ltd. v. Sanghi Spinners (India) Ltd. [2007] 140 Comp Cas 161/74 SCL 95 (AP). 13. The petitioner is engaged in the business of transport of goods of the customers, as per the orders placed by them from time to time. The respondent belongs to Surana Group of Industries. There are about 10 companies belonging to Surana Group of Industries. All the companies transported their goods by engaging the transport service of the petitioner firm. The petitioner firm retained two consignments of 70 boxes of jointing kits under L. R. No. 28587 dated October 11, 2001 and 70 boxes of jointing kits booked under L. R. No. 02588 dated October 11, 2001 as a lien in exercise of its right to recover freight charges. The above-referred two consignments related to M/s. P. M. Telecom, which is one of the companies of Surana group. Apart from the above-referred two consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a company on the ground of its inability to pay its debt, what is necessary is that despite service of notice by the creditor, the company which indebted in a sum exceeding one lakh rupees then due, failed and/or neglected to pay the same within three weeks thereafter or to secure or compound for it to the reasonable satisfaction of the creditor. Failure of the company to pay the agreed interest or the statutory interest would come within the purview of the word "debt". Further section 433(e) of the Companies Act does not state that the debt must be precisely a definite sum. It is not a requirement of law that the entire debt must be definite and certain. 18. RW1 admits in chief examination of the failure of the respondent-company in paying the freight charges to the petitioner firm. For better appreciation, I may refer the relevant portion of the chief examination of RW1 in his own words, and it reads thus : "I state that on October 11, 2001 M/s. P. M. Telecom, i.e., one of M/s. Surana group of companies booked consignment of jointing kits, TSF-2 to be consigned to MTNL, SDE, (SD), Ghatkopar, Mumbai through the petitioner firm. In each lorry 70 boxes containing the jointing kit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the respondent disputed the authority of Mr. Ravi Shankar to admit the liability on its behalf. The respondent-company took the plea that Mr. Ravi Shankar earlier worked as regional manager in the petitioner firm and he had no authorisation on behalf of the respondent-company to admit the liability on its behalf towards the petitioner firm. The respondent-company entrusted the consignment of plastic isolated copper wire to the petitioner for being delivered to Paramount Communications situated at New Delhi on December 31, 2000 and November 1, 2001. The petitioner has not delivered the material to the consignee. For the first time PW1 came up with the theory in the cross-examination that the consignment which is required to be delivered to M/s. Paramount Communications met with a fire accident in transit. For better appreciation, I may refer the statement of PW1 in cross examination in his own words and it is thus : "We have not withheld the consignment sent to M/s. Paramount Communications as the consignment met with fire accident in transit." 20. It is nowhere stated in the petition that the consignment is involved in fire accident while on transit. When once the goods are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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