TMI Blog2022 (4) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... taken and whether the said defence can be said to be bonafide - The Company Court has, on the basis of the material on record, arrived at satisfaction that, the defence which the respondent Company has taken can not be said to be bonafide. The defence raised by the Company is two fold. Firstly that the documents relied by the petitioner Credit Suisse, Switzerland are not stamped and therefore the Courts in India will not take cognisance thereof and secondly, the S.R.Technics did not have valid license from the Director General of Civil Aviation (DGCA) and therefore it could not have legally maintained the Aircrafts / Engines of the appellant Company and consequently no amount could be said to be payable by the appellant to it and thereby there is bonafide dispute with regard to the said payment. Both the defences raised by the appellant are rejected. At least, they are not accepted as bonafide defence. The admission of the petition therefore need not be interfered with. The stand of the appellant as quoted above would also justify admission of the petition under Section 433 (f) of the Act as well. Appointment of Provisional Liquidator - HELD THAT:- Though no observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate for the appellant Company has addressed the Court at length. It is noted that he has extensively taken this Court through the paper books, running into few hundred pages. He has also relied on number of authorities, which are quoted here below. 2.2 It is noted that various submissions are made on behalf of the appellant, as raised as grounds of appeal(s) as mentioned in the memo of appeals, the substance thereof is that, what the petitioner claims, can at the best be said to be due and not the debt. Further, there is serious dispute about that amount being payable by the appellant to SR Technics and further that, the said dispute is bonafide and also a substantial one. It is therefore submitted that the winding up petition ought not to have been admitted by the Company Court. 2.3 The bone contention on behalf of the appellant is two fold. Firstly that the documents relied by the petitioner Credit Suisse, Switzerland are not stamped and therefore the Courts in India will not take cognisance thereof and secondly, the S.R.Technics did not have valid license from the Director General of Civil Aviation (DGCA) and therefore it could not have legally maintained the Aircraft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehru Place Hotels Limited v M/s.Bhushan Limited reported in 2011 SCC Online Del 3342 (xiv) Sri Vijayalakshmi Art Productions rep. By its Partners C.Venkataraju, G.Sivaraju and Smt.C.Ramalakshmi v Vijaya Productions (P) Limited, Vadapalani, Madras - 26 reported in 1995 SCC Online Mad 498 (xv) In the matter of M/s Rushabh Precision Bearings Ltd, M/s.Marine Container Services (India) Private Limited reported in 1999 SCC Online Bom 263 (xvi) Tata Iron and Steel Co v Micro-Forged (India) Limited reported in 2000 SCC Online Guj 394 (xvii) Wimco Ltd v Sidvink Properties P Ltd reported in MANU/DE/0191/1994 (xviii) Regazzoni v K.C.Sethia (1994) Ltd reported in 1958 AC 301 2.6 It is noted that, on behalf of the appellant reliance was also placed on the following decisions (as per Volume dated 10.01.2022) :- (i) Sukaj Kam Khur Ana v Hari Rattan reported in 1972 SCC Online Del.304 (ii) Antewerpse Diamant Bank N.V. v Kamaland Co., 2006 SCC Online Bom 1286 (iii)Ms/.Kamal and Co., v Antwerpse Diamant Bank N.V. (Appeal No.409 of 2006) dated 15.04.2010 (Bombay HC) (iv)Nallacaruppen Chetty v Nanayakkara reported in 27 New Law Reports 225 (v) Wolstenholme Internationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Barn reported in 1981 SCC OnLine Raj 13 (ix) V.R.Sonai v Chinniah Konar reported in 1968 SCC OnLine Mad 109 (x) R.Kannusamy v V.V.K.Samy Co., Singapore reported in 1988 SCC OnLine Mad 159 (xi)Banyan Tree Growth Capital L.L.C. V Axiom Cordages Limited and ors reported in 2020 SCC OnLine Bom 781 (xii)Dr.Chiranji lal (D) by Lrs v Hari Das (D) by Lrs reported in (2005) 10 SCC 746. (xiii)Ponnusami Chettiar v Kailasam Chettiar reported in (1947) 60 LW 442 (xiv) Nokia India Pvt Ltd v State of Chattisgarh reported in (2019) SCC OnLine SC 1451 (xv)SRM Exploration Pvt Ltd v N S N Consultants, SRO reported in 2012 (129) DRJ 113 (DB) (xvi) Vijay Karia v Prysmian Cavi E Sistemi SRL reported in (2020) 11 SCC 1 (xvii)Samarendra Nath Sinha v Krishna Kumar Nag reported in (1967) 2 SCR 18 (xviii) Director of Industries and Commerce v P.N.Kumar reported in 2008 SCC OnLine Mad 871 (xix) C.Hariprasad v Amalgamated Commercial Traders Pvt Ltd reported in 1971 SCC OnLine Mad 188 4. Though learned advocates for the contesting parties have addressed the Court at length by referring to the paper books which run into hundreds of pages and have also relied on number of aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt between SR Technics and the Appellant dated 24 November 2011. 7.4.2 Amendment No.2 to the Agreement between SR Technics and the Appellant dated 24 August 2012. 7.4.3 Supplementary Agreement for deferred payment between SR Technics and the Appellant dated 24 August 2012. 7.4.4 Frame agreement between SR Technics and the Respondent dated 26 September 2012. 7.4.5 Transaction agreement between SR Technics and the Respondent dated 26 September 2012. 7.4.6 Invoice raised by SR Technics on the Appellant Company for USD 4,134,733.75 bearing reference no. M90204840 dated 30 July 2013. 7.4.7 Bill of Exchange issued in Zurich for USD 4,134,733.75 drawn on the Appellant payable at Yes Bank, New Delhi on January 26, 2014 dated 31 July 2013. 7.4.8 Certificate of Acceptance executed between the Appellant and SR Technics in relation to invoice no. M90204840 of USD 4,134,733.75 dated 31 July 2013. 7.4.9 Winding up notice under Sections 433 and 434 of the Companies Act 1956 issued by the Respondent dated 21 January 2015 and 7.4.10 Arbitration Award issued by ICC dated 20 November 2017. 7.5 Of the above ten documents, the document at serial No. 3 i.e., as noted at par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant to it and thereby there is bonafide dispute with regard to the said payment. 9. So far the first point that the documents relied by the petitioner Credit Suisse, Switzerland are not stamped and therefore the Courts in India will not take cognisance thereof is concerned, we find that it needs to be noted that the Company Court has taken note of the decision of the Division Bench of this Court, so also that of the Bombay High Court which takes the view that, at the time of admission of the winding up petition, the point at issue is not whether the document sought to be relied by the petitioner is sufficiently stamped or stamped at all. The only point to be verified is whether the debt is bonafide disputed and whether the said defence is a substantial one. Applying this test, keeping in view the binding decision in this regard, which is referred to by the Company Court in the impugned order, independent of the satisfaction recorded by the Company Court, we also hold that such a defence can not be said to be a bonafide defence and at the stage of admission of the petition, it need not be gone into. This argument therefore needs to be rejected. 10. So far the second lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding up petition which was filed in the year 2015 could be taken up for admission only in the year 2021. Though no observation for / or against any of the parties in this regard is made, the fact remains that the said pendency has not helped the petitioner in any manner. The appellant claims to be one of the largest passenger carrier in the civil aviation industry of our Country, which by its own stand has carried hundreds of thousands of passengers for all these years without maintenance of its Air Crafts and engines from any service provider with valid license from DGCA. The admission of petition under Section 433 (f) of the Act may become more relevant in this background. 13. As noted in para 4 above, though learned Senior Advocate for the appellant has relied on number of authorities, which are noted above, according to us, in the facts and the findings which are noted above, none of the said authorities would help the appellant. Further, none of the said authorities would make the order of the Company Court, admitting winding up petition and appointment of Official Liquidator as Provisional Liquidator, unsustainable. Those authorities do not need any discussion beyond this. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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