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M/s Kuoni Travel (India) Private Limited Versus M/s Tecumseh Products India Private Limited, Hyderabad.

2016 (1) TMI 87 - ANDHRA PRADESH HIGH COURT

Claim for set-off or adjustment - adjudicating the winding up petition - Held that:- Though the claim for set-off or adjustment is made by the respondent towards the alleged damages against the amount payable by it, for the limited purpose of adjudicating the winding up petition, this Court cannot treat such a claim for set-off or adjustment as lacking bona fides. Whether the respondent is really entitled to such setoff or adjustment needs to be adjudicated by the competent Court of law. For the .....

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riate one and no order for winding up of the respondent for non-payment of the admitted debt can be passed.

The Company Petition is, accordingly, dismissed, however leaving the petitioner free to avail common law remedies for recovery of the amount claimed by it from the respondent. - COMPANY PETITION No.158 of 2015 - Dated:- 5-10-2015 - SRI C.V.NAGARJUNA REDDY, JJ. For The Petitioner : Mr. Gandham Durga Bose For The Respondent : Mr. M.Laxmi Narasimham ORDER: This Company Petition is .....

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tioner and entrusted the work of arranging visa to its Managing Director in February, 2014, for his visit to France from 17.3.2014 to 22.3.2014. It is the pleaded case of the respondent that on 25.02.2014, all the relevant documents including the passport of its Managing Director were handed over at the local office of the petitioner at Hyderabad for processing visa. However, the respondent could secure visa to its Managing Director only on 25.3.2014. As the petitioner was claiming a sum of S .....

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ure visa to its Managing Director, it is liable to pay damages under the said Clause and has, accordingly, issued notice to the petitioner on 22.4.2015. More than four months after receipt of the said notice, the petitioner has replied to the same, wherein while denying any negligence on its part in securing visa to the Managing Director of the respondent, it has relied upon Clause-8.1 of the agreement, dated 19.6.2012, and stated that the respondent is not justified in withholding the amount ad .....

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ndent is claiming a set-off against the payment receivable by the petitioner-company due to the loss suffered by the respondent on account of the negligent handling of the visa issue by the petitioner. He has relied upon certain judgments which include the judgment of Calcutta High Court in Martin & Harris Pvt Ltd Vs. Organon (India) Pvt Ltd 2014 LawSuit (Cal) 961 and that of the Patna High Court in BOC India Limited Vs. Zinc Products and Company Pvt Limited 1998 LawSuit (Pat) 388 to fortify .....

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nd to adjudicate as to whether the petitioner is entitled to claim a set-off or not as, such a question does not arise in a Company Petition filed for winding up of the respondent for non-payment of the alleged debt, it would, however, like to examine the above-mentioned Clauses only for being prima facie satisfied as to whether the claim for set-off made by the respondent has any basis and consequently, denial of the debt by it is bona fide or not. In a Company Petition filed for winding up of .....

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bona fide or not is whether the dispute was raised for the first time in the winding up proceedings or it was raised at the very first instance before presentation of the winding up petition. As noted hereinbefore, as far back as 22.4.2015, i.e., almost one year before the filing of this winding up petition, the respondent has raised a serious issue on the alleged failure of the petitioner to secure visa for its Managing Director. The petitioner has not even responded to the said letter for more .....

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f wrongful termination of contract by the petitioner therein, against the amounts payable by it. It has relied upon the judgment of the Madhya Pradesh High Court in State of M.P. Vs. Raja Balbhadra Singh 1964 AIR (MP) 231, wherein it was held as under: "Where two persons have certain accounts and monies are payable by each to the other, they are both entitled to mutual adjustments of the monies provided they are really due and recoverable. The distinction between payment and adjustmnet is t .....

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m another, if he has in his hand monies belonging to that other, provided that his dues are legally recoverable. Although that question will be adjudicated by the Court of law when it arises, he is not obliged to sue for the recovery of the money which he is already in possession of." Following the said judgment, the Calcutta High Court observed as under: Therefore, the plea of adjustment is not unrecognized in law provided the amount for which it is adjusted is legally sustainable and/or r .....

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