TMI Blog2015 (5) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... ng existed. There is not even a reply to the statutory notice, which could have pointed out such an alleged oral understanding. The next contention raised by the Company is that the Petition deserves to be dismissed on the basis that the Petitioner has suppressed the fact that its insurance company has paid US$ 181,026.72 to the Petitioner in settlement of its claim against the said invoices. As correctly submitted by the Petitioner, the Company has, in its written submissions, admitted that the fact that the Petitioner received US$ 181,026.72 from the insurance company was brought to the knowledge of the Company by the Petitioner itself. If the Petitioner had any intention of suppressing the said fact as alleged, the Petitioner would not have mentioned the same to the representative of the Company. The next contention urged by the Company is that the Petitioner has received monies from its insurer in lieu of its claim and it is therefore unable to maintain the present proceedings vis-a-vis the Company. In my view, this contention is without merit. The principles of subrogation with respect to insurance contracts have been considered and discussed in various judgments and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, I see no reason to refuse admission of the present Company Petition on these grounds. - Winding up petition allowed. - COMPANY PETITION NO. 294 OF 2014 - - - Dated:- 22-12-2014 - S.J. Kathawalla, J. For the Appellant : Mr. Shyam Kapadia, along with Mr. Darshan Mehta and Mr. Hasmit Trivedi, M/s. Dhruve Liladhar Co., For the Respondent : Mr. Sandeep Parikh, instructed by M/s. PDS Legal ORAL ORDER: 1. The above Company Petition is filed by the Petitioner seeking winding up of the Company - Syrma Technology Pvt. Ltd. ( the Company ) on the ground that the Company is unable to pay its debts. The Company Petition is taken up for admission. 2. The Company Petition arises out of goods sold and delivered by the Petitioner under seven purchase orders placed by the Company in respect of which seven invoices were admittedly issued by the Petitioner which have remained unpaid. It is not disputed by the Company that the said purchase orders were placed and that the goods thereunder have been duly delivered. In fact, vide its e-mails dated 22nd January 2013 and 28th January 2013, the Company has categorically admitted its liability to pay the outstanding amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner but encompasses much more. Accordingly, it is submitted that the Petitioner has assigned and transferred to the insurance company and abandoned in its favour all of the Petitioner s rights against the Company and granted to the insurance company full power to recover from the Company the entire claim amount stated in the Petition. It is therefore submitted that the Petition which is filed in the sole name of the Petitioner is bad in law and not maintainable. It is also submitted that the letter issued by the Sinosure dated 19th November, 2014 (which is considered in greater detail below) does not state that it has authorized the Petitioner to file any petition in the name of the Petitioner to recover the money paid by it. It simply states that the insurance company is aware of the present Petition filed by the Petitioner. 6. The Company has, in the alternative and without prejudice to its earlier submissions, submitted that, even if it is assumed that the Petitioner has subrogated its rights in favour of the said insurer and the said insurer has requested the Petitioner to file the petition in the name of the Petitioner, the Petitioner can only claim from the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioners Insurance Company, viz. China Export and Credit Insurance Corporation (Sinosure) had paid US$ 1,81,026.72 to the Petitioner in settlement of its claim against the said invoices . It is submitted that the decision in Agarwal Industries Ltd. (supra) would not be applicable to the present case since there is an absolute divergence of facts in that case and the present matter. 11. In relation to the the contention raised by the Company that since the Petitioner has received monies from its insurer, the Petitioner is unable to maintain the present proceeding vis-a-vis the Company, it is submitted on behalf of the Petitioner that such an argument is untenable and in stark contrast to well-settled principles of law. The contention that it is only the insurer who has the right to initiate proceedings against the Company is also incorrect and without any basis in law. The Petitioner further submitted that the contents of the payment receipt-cum-subrogation form could not be faulted in any way. as the same is a standard form, the like of which is required to be executed by insurance companies while making payments in respect of any claims. As such, these forms record the subro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay its debts, the present petition deserves to be admitted and advertised. 16. I have considered the submissions advanced on behalf of the Petitioner as well as the Company. The Company has, at the outset, submitted that there was an oral understanding between the Petitioner and the Company that payments to the Petitioner would only be made once monies are received from Powerwave. As correctly submitted by the Petitioner, the said argument is an afterthought and a belated attempt to avoid making payment of the Petitioner's lawful dues. There is not even a whisper of such an arrangement/understanding in the e-mails of the Company admitting liability and assuring prompt payment. The Company has produced no contemporaneous correspondence to suggest that such an understanding existed. There is not even a reply to the statutory notice, which could have pointed out such an alleged oral understanding. 17. The next contention raised by the Company is that the Petition deserves to be dismissed on the basis that the Petitioner has suppressed the fact that its insurance company has paid US$ 181,026.72 to the Petitioner in settlement of its claim against the said invoices. As cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious judgments and are well established. The assured is entitled to proceed against the third party and its only obligation is to make good the amount paid by the insurer after having accounted for its own claim, i.e. to ensure that the assured is not paid in excess of its claim. A third party cannot be seen to take the defence that the claimant has already been paid out by the insurer and, consequently, avoid making payment on that ground. Strictly speaking, that is a matter between the insurer and the assured. In the case of Mason v. Sainbury Anr. (supra) which dealt with the burning down of property in a riot (the act of arson said to have been committed by the hundred ), the Court had the opportunity to discuss the position of the assured vis-a-vis the hundred when the insurer had already paid certain sums. The relevant parts of the judgment of Lord Mansfield and Justice Buller have been reproduced hereinbelow: Lord Mansfield - The facts of this case lie in a narrow compass. The argument turns much on want of precision in stating the case, as most arguments do. The office paid without suit, not in ease of the hundred, and not as co-obligors, but without prejudice. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the insurer and the insurer's direct instructions not to pursue the matter. The relevant parts of the judgment are reproduced below: Assuming that the Plaintiff still has his two rights: first to recover the 281. 2s. 8d. from the insurance company on his policy, and, secondly, to recover that same 281. 2s. 8d. as damages from the wrongdoer, the simple solution of this matter is for the insurance company to do that which they are entitled to do - namely, to ask him to hand them that sum. That is a perfectly simple solution, but I cannot see that the fact that they choose to forgo their right to receive this sum from their assured imposes any obligation upon him. The insurance company may choose to make the assured a present of the 281. 2s. 8d., but that does not affect his legal right. I think the sum and substance of it is this: that this case is not in a class which resembles in any particular the case of Hirachand Punamchand V. Temple. There is lacking, amongst other things, what I think is the essence of that case - namely that as between themselves and the father, by a bargain which was superimposed upon and subsequent to the original contract between the money lende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation in relation to a contract of marine insurance is thus no more than a convenient way of referring to those terms which are to be implied in the contract between the assured and the insurer to give business efficacy to an agreement whereby the assured in the case of a loss against which the policy has been made shall be fully indemnified, and never more than fully indemnified. Two consequences flow from this: first, subrogation is I concerned solely with the mutual rights and liabilities of the parties to the contract of insurance. It confers no rights and imposes no liabilities upon third parties who are strangers to that contract, It vests in the insurer who has paid a loss no direct rights or remedies against anyone other than the assured. He cannot sue such parties in his own name (see Simpson v. Thomson; he is bound by any release given by the assured to a third party (see West of England Fire Insurance Co v. Isaacs. The insurer's rights against the assured cannot be affected by any subsequent contract, or dealing between the assured and a third party. (Boag v. Standard Marine Insurance Co. Ltd. ; West of England Fire Insurance Co. v. Isaacs. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Pacific Steam Navigation Co. Case (supra), to include any right which the common law looked on as not assignable by reason of its being chose in action but which a court of equity dealt with as assignable. 18. In the present case, the insurance company has not sued to enforce any assignment. The document which is described as letter of subrogation also uses the words of assigning rights against the Railway Administration. It is not necessary to express any opinion whether the letter of subrogation amounted to an assignment in the present case, because the insurance company has not sought to enforce any assignment. 19. The respondent mill will give a valid discharge to the Railway Administration in respect of loss and damages. This decree will be a bar to the institution of any suit by the insurance company in respect of the subject matter of the suit. The respondent mill is answerable and accountable to the insurance company for the moneys recovered in the suit to the extent the insurance company paid the respondent mill. 18. The Petitioner also placed reliance on a Division Bench decision of the Gujarat High Court which had an opportunity to consider a similar sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny would be entitled to seek recovery of such sums from the Petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and Petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. 19. The Company s following submission was that the claim under the Petition was not a 'debt' but 'damages' and there was no ascertained liability. Therefore, it was submitted, the claim of the Petitioner can only be proved in a Civil Court. In my view, there is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, there is no dispute in respect of the admitted outstanding of US$ 226,283.40 payable by the Respondent. Therefore, the present Company Petition, which is in respect of an admitted debt and an ascertained liability is unaffected by the judgments relied upon by the Company which relate to the non-maintainability of a winding up petition in cases where there is an unascertained sum payable to the Petitioner. Each of the decisions relied upon by the Company are not applicable to the case at hand for the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that the winding up petition would not be maintainable even though the claim was calculated in accordance with the contract between the parties. It was held that the amount claimed was not a debt but was in fact damages and that, therefore, in the absence of a decision by a Civil Court or an Arbitrator, no amount could be said to be due from Greenhills even if that amount had been purely calculated in accordance with the contract. In the present Petition, there is no requirement whatsoever for any calculation to be performed to arrive at the sum due and payable by the Respondent. It is the admitted position that the Petitioner has sent invoices for the goods, which were admittedly delivered, and that the sum total of invoices was also duly admitted by the Respondent in various correspondence with the Petitioner. As such, the Petitioner s claim is not one for damages but is in the nature of an admitted and acknowledged debt. (iii) ICICI Lombard General Insurance vs. AFL Ltd. (supra): This decision pertained to a claim of ₹ 1.7 lakhs filed by an insurance company against a transport company for payments made by the insurer to Hitachi Home and Life Solutions Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be admitted. This position, i.e. that the commercial solvency of a company cannot be a sole ground to reject the admission of a Company Petition, particularly when the debt is admitted and there is no bona fide dispute, is well established and has been enunciated by the Supreme Court in IBA Health (India) Pvt. Ltd. v. Info-Drive Systems Sdn. Bhd. 2010 (10) SCC 553 and has been repeatedly followed by this Court. Similarly, this Court in Global Trust Bank Ltd. v. Killick Nixon Ltd. (2005) 128 CompCas 1007 (Bom) has taken the view that merely because the Respondent Company is a running concern and has employees working, cannot be a reason to reject a winding up petition when the other ingredients of Section 433 and 434 are present. Therefore, I see no reason to refuse admission of the present Company Petition on these grounds. 21. In conclusion, the Company s contention of their being an oral understanding regarding payments to be received from Powewave is dishonest and belied by the contemporary correspondence. The primary contention raised by the Company that the Petitioner is not entitled to maintain the present petition having received a sum of US$ 181,026.72 from the insuran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sums admittedly due from it. I am therefore satisfied that the Company is unable to pay its debts and has raised defences which are false/dishonest. 22. Hence the following order: (i) The Company Petition is admitted and made returnable on 6th April, 2015. (ii) The Petitioner is directed to advertise the Petition in two local newspapers, viz. Free Press Journal (in English) and Nav-Shakti (in Marathi) and also in Maharashtra Government Gazette. Any delay in the publication of the advertisement in the Maharashtra Government Gazette, and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. (iii) The Petitioner shall also deposit an amount of ₹ 10,000/- with the Prothonotary and Senior Master of this Court towards publication charges, within a period of two weeks from the date of this Order, with intimation to the Company Registrar, failing which the Petition shall stand dismissed for non-prosecution without further reference to the Court. After the advertisements are issued, the balance if any, shall be refunded to the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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