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TMI Blog2013 (7) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Petition No.326/2010 was requisitioned and the same has been placed before this Court. 2. The short question for consideration is whether the claim of the petitioner against the respondent company stood settled as contended on its behalf. 3. The learned counsel for the petitioner submitted that the respondent company deducted income tax of Rs. 74,184/-, but the net amount after deduction was never paid to the petitioner. The total amount originally payable to the petitioner was Rs. 32,67,975/- out of which a sum of Rs. 28,29,058/- was paid on 20.03.2009. The balance amount payable is Rs. 3,64,773/-. Though this amount was not paid, the respondent company deducted income tax of Rs. 74,184/- from the same which according to the petitioner amounted to the acknowledgement of the liability of the respondent company. My attention was drawn to the affidavit of Puneet Soni, sole proprietor of the petitioner and the annexures thereto. It is pointed out that the petitioner's wife was carrying on a business under the name and style of M/s. Innovations which entered into a settlement with a company called Focus Brands Trading (India) Pvt. Ltd. ("Focus", for short) according to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearing long overdue payments. Though a start has been made to clear my outstandings, by a payment of Rs. 24.5L, the outstandings are still upwards of 65L. In view of the inordinate delay in the payments, & as also appreciated by you in our meeting, these need to be cleared at the earliest within definite timelines. I'm sure, with you at the helm, this would be achieved.
As mentioned to you during the meeting, I've been in the business of supplying POS merchandise to various liquor companies for over 20 years, & have been associated with Focus Brands since its inception more than 8 years back.
The last year or so, has been a difficult year for Focus & subsequently due to it's cascading effect, these were very trying times for me as well. But I'm positive that in times to come, our business association can only get bigger & better.
Looking forward to a renewed & more meaningful association with you & your team at Focus Brands.
Regards,
Puneet Soni
SERVEL INDUSTRIES
INNOVATIONS"
6. The second e-mail is at page 126 (Annexure-R) which reads as under: -
"From: puneet soni X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, and since no debt is due, the winding-up petition is not maintainable. 8. I have carefully considered the matter. I have also perused the file in Company Petition No.326/2010. It is true that in the Memorandum of Settlement dated 20.05.2011 arrived at between the petitioner (Servel Industries) and his wife (M/s. Innovations) on the one hand and Focus on the other, that a total outstanding of Rs. 69,74,721/- was settled at Rs. 25 lakhs. This amount consisted of the principal sum of Rs. 55,57,721/- and interest of Rs. 14,17,000/-. It prima facie appears that the Memorandum of Settlement was entered into only with reference to the amount payable by Focus to both the petitioner and his wife for material allegedly supplied to Focus. It refers to the fact that M/s. Innovations filed Company Petition No.326/2010 before this Court for winding up of Focus on the ground that it was unable to pay the aforesaid amount to it. There is no reference in the Memorandum of Settlement to the agreement dated 25.01.2007 entered into between the Focus and the respondent-company, clause 5.7 of which made Focus responsible for all consequences arising out of non-payment of dues by the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner, the amount due from Focus, which was ultimately settled at Rs. 25 lakhs under the Memorandum of Settlement dated 20.05.2011, included the amount of Rs. 3,64,733/- due from the respondent-company. The fact that the e-mail was written by Puneet Soni both on behalf of his proprietary concern and on behalf of his wife's proprietary concern furnishes the link not only between them on the one hand and Focus on the other, but also indicates the link between Focus and the respondent-company on the other hand when it mentions that the amount outstanding from Focus includes the amount outstanding from Alcobrew, the respondent-company in the present proceedings. The agreement between Focus and the respondent-company entered into on 25.01.2007, particularly clause 5.7 thereof, becomes relevant for this reason that though it was the primary responsibility of the respondent- company to pay for the materials supplied to it, the consequences of the non-payment would have to be met by Focus. This in turn means that if the respondent-company failed to pay the amount of Rs. 3,64,773/- due to the petitioner, it would be the liability of Focus to discharge the same. Thus all amounts which, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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