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TMI Blog2014 (4) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... the typed set), which has been acknowledged by the respondent on 30.9.10 (page-302 of the typed set), where they have acknowledged the debt and sought time for making payment by 2 to 3 months. Another letter dated 28.12.10 (page-205 of the typed set) was issued by the petitioner, which is acknowledged by the respondent on 20.1.11 (page-307 of the typed set). A series of e-mail correspondence dated 28.11.11, 8.3.12 and 22.8.12 (pages - 316, 319 and 339) goes to show that the debt has been acknowledged and has not been paid despite repeated requests. 2. In the meanwhile, it appears that the petitioner and the respondent entered into a restructuring plan formally proposed by the respondent, whereby the respondent wanted the logistics business to be hived off to a separate entity. In this regard, a Novation and Transfer Agreement dated 16.5.12 was entered into (page-320 of the typed set of the petitioner), which again reflects acknowledgement of the outstanding amount due by the respondent to the petitioner. The restructuring agreement dated 16.5.12 could not be implemented and, therefore, on 15.3.13, two agreements were signed. The first one is a Recission Agreement dated 15.3.13 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations under the contract the Service Provider is hereby unconditionally and irrevocably released and discharged from all claims, liabilities, demands, suits, actions, causes of actions, losses, costs, damages, liabilities and expenses including reasonable attorneys' fees, directly or indirectly incurred, paid or accrued in connection with or resulting from or arising out of the contract with effect from the close of business hours of the closing date. 2. GOVERNING LAW This shall be governed and construed in accordance with laws of India and below the courts at New Delhi shall have the sole and exclusive jurisdiction to entertain any disputes that may arise hereunder. 3. FURTHER ASSURANCES By executing this Novation and transfer agreement the service provider acknowledges that -- a. It is consenting to the Novation of the Agreement to VLMS without in any manner discharging ETA of its obligations. b. VLMS and/or ETA will comply with the terms and conditions of the purchase order if not already complied with. 4. INDEMNITY ETA hereby agrees to indemnify the service provider from and against any claims, liabilities, demands, suits, actions, causes of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies Court Rules, 1959; (ii) the petitioner had filed a petition for winding up of VLMS in the High Court of Karnataka on the very same cause of action and that has been suppressed before this Court and, therefore, this petition should be dismissed; (iii) the issue raised by the petitioner could be an interpretation of NAAC dated 15.3.13 and that cannot be done in a winding up petition; and (iv) the respondent company is a profit making company. 5. Mr. Arvind P.Datar, learned senior counsel appearing for the petitioner submitted that the acknowledgement of debt prior to the agreement dated 15.3.13 is clear and present. Even in the agreement dated 15.3.13, the debt has been transferred, no doubt, to VLMS, but there is a very clear clause, in agreement signed by the petitioner, wherein there is a clear understanding that the respondent's obligation under the contract on the debt that was due as on 15.3.13 still continues with ETA and clause (b) clearly provides that VLMS and/or ETA will comply with the terms and conditions of the purchase order, if not already complied with. It is a clear stand of the petitioner that they have reserved their right to proceed against bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) that the company is unable to pay it debts, the law should take its own course and the company of course will have an opportunity on the liquidation application to rebut that presumption." 9. Rule 21 and Form 3 of the Companies Court Rules was relied upon by the learned counsel for the respondent to show that the petition is a defective petition. For better appreciation, Rule 21 is extracted hereunder :- "21. Affidavit verifying petition-Every petition shall be verified by an affidavit made by the petitioner or by one of the petitioners, where there are more than one, and in the case the petition is presented by a body corporate, by a director, secretary or other principal officer thereof; such affidavit shall be filed alongwith the petition and shall be in Form No.3. Provided that the Judge or Registrar may, for sufficient reason, grant leave to any other person duly authorised by the petitioner to make and file the affidavit. (16). Under Rule 21 in the case of a petition presented by a body corporate, by a director, secretary or other principal officer, such affidavit shall be filed along with the petition and shall be in Form No.3. Form No. 3 is reproduced here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer" as is evident from P. Ramanatha Aiyar's 'The Major Law Lexicon' at page 5325 reads as under :- "'PRINCIPAL OFFICER', used with reference to a company or any association of persons means -- (a) the secretary and treasurer, manager, managing agent, managing director or agent of the company or association; or In page 5326 of the aforesaid book, the word 'principal officer' is defined as hereunder:- "A 'principal officer' of a corporation is one whose oversight or agency exists either over the whole or some particular department of the general business of the corporation; as a president, who has ordinarily a general oversight over its entire business, a secretary over its records or a treasurer over its moneys." 12. The term 'Manager' has been defined under Sub-section 24 of Section 2 and the term 'Officer' has been defined under Sub-section (3) of Section 2 of the Companies Act, which read as hereunder :- (24) "Manager" means an individual (not being the managing agent) who, subject to the superintendence, control and direction of the Board of directors, has the management of the whole, or substantially the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the learned counsel for the respondent is that the case of the petitioner involves interpretation of the NAAC and, therefore, there is a clear case of dispute. The interpretation as urged by the learned counsel for the respondent is as to whether the liability would stand as against VLMS or the respondent. Here is a clear case of goods sold and delivered and debt acknowledged prior to 15.3.13 by the respondent. The question is whether the respondent herein, viz., ETA, or the transferee VLMS is liable. The agreement of transfer slump sale by the respondent to VLMS does not in any way affect the rights of the petitioner, governed by the terms of NAAC. Clause (3) of the NAAC agreement very clearly provides that the parties agree that the respondent - ETA's obligation is not discharged and an indemnity is also provided by the respondent and there is nothing in the agreement, which discharges ETA of its obligations. In such view of the matter, I do not find any justification to non-suit the petitioner on the ground that they have filed a petition before the High Court of Karnataka as against VLMS. 17. In view of the reasons as stated above, all the plea taken by the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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