TMI Blog2018 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for the balance sum. The petitioner could not do so for the stand taken by the said company. The company has also sought to make out a case that the containers having not taken back the same are occupying space for which the said company is entitled to damages. This contention of the company though does not sound good at the first instance but there appear to be some element for which enquiry is required in this regard which cannot be done by the company Court while adjudicating an winding up proceedings. It may so occur that in the trial the company’s defence may not succeed but this cannot be said at this stage without a trial. The company is, therefore, afforded an opportunity to defend itself upon securing the entire claim for the balance period from 29th November, 2015 till 7th June, 2016 at the rate of 75 US$ per day converted to INR at the prevailing rate as on the date of the judgment. Since the claim between 29th November, 2015 till 7th June,2016 is not barred by limitation as it is still within three years, the petitioner may file a suit within 28th November,2018. The company is given time till 25th November, 2018 to deposit the said sum for the period between 29th No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- after deducting a sum of ₹ 5300/- from ₹ 2,99,300/- as TDS. The petitioner though claims that there is an unpaid sum of ₹ 5300/- but the same having been deducted towards TDS and that the certificate thereto being annexed to the company s affidavit-in-opposition it should be and accordingly held that the entire amount against such four bills have been paid by the said company. 3) The petitioner, however, says that the containers till the date of filing of the winding up petition has been lying with the said company. In that view of the matter, the petitioner has claimed detention charges from 8th November, 2015 to 7th June, 2016 at the rate of 75US$ converted into INR at the rate of ₹ 68 per US$ aggregating to ₹ 21,72,600/-. The petitioner has also claimed a sum of ₹ 3,15,338/- on account of outstanding service tax on the said detention charges as well as a sum of ₹ 5300/- being the alleged unpaid amount from the previous bills. After discounting the said sum of ₹ 5300/- for the reasons as stated hereinabove it appears that the aggregate sum claimed as outstanding debt by the petitioner is ₹ 24,87,984/-. On the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be returned as the petitioner was not willing to waive the detention charges as a consequence thereof the detention charges soared up. The said company in its letter dated 28th January, 2016 has claimed a sum of ₹ 13,47,756.60/- from the consignee and a sum of ₹ 20,75,496.60/- by the letter dated 17th March, 2016. 6) It also appears from the correspondences exchanged between the parties that the said company wanted to hand over the two containers unconditionally and towards full settlement of all the dues of the petitioner. The petitioners did not want to accept the containers by waiving its detention charges or as a final settlement of the claim and as such, the containers are still lying with the said company. 7) After considering the materials on record, the pleadings and the submissions made on behalf of the respective parties it appears that there is no agreement in writing between the petitioner and the said company wherein the said company has agreed to pay any detention charges on account of delay in returning the two containers to the petitioner. It is, however, clear from the own admission of the said company that they have paid three bills on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for a particular period has avoided payment by attempting to shift the liability on the consignee and M/s. M.A. Badani with whom the petitioner had no dealings. The said company has only initiated criminal proceedings against the consignee and M/s. M.A. Badani but, it has not initiated any civil proceedings to recover any money from them though it urges in its letters that the detention charges are payable to the petitioner thereby demanding money from the consignee. The only dispute the company has raised as to whether the said company will itself pay or the consignee or M/s. M.A. Badani will pay. This is an internal dispute between the said company and the consignee. The facts remain that the company had engaged the petitioner and not the consignee or M/s. M.A. Badani. The company having paid detention charges for a particular period cannot be allowed to say that it has no obligation to pay for the balance period. The company further says that it had offered the two containers with a condition that on the return of the same the petitioner shall have no claim against it. The defence of the company with regard to the payment of detention charges for the subsequent period is, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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