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TMI Blog2016 (12) TMI 1915X X X X Extracts X X X X X X X X Extracts X X X X ..... loan. It is further contended that on 17.02.2014, the Petitioner replied to the Respondent that the loan was given pursuant to an oral request by Mr. Kushal Agarwal, a Director of the Respondent-Company. It is further their case that the Respondent-Company has failed to repay the loan to the Petitioners and, as such, the above Petition came to be filed seeking winding up of the Respondent-Company. It is further pointed out that the Petitioners also learnt that the Respondent-Company is heavily indebted and that there are charges registered by Andhra Bank against the Respondent-Company to the tune of Rs. 12,63,00,000/-. It is further pointed out that even the returns filed before the Company-Registrar, there is a loss shown to the tune of Rs. 28,59,674/-. It is accordingly claimed that the Petitioner is entitled for the said reliefs sought in the Petition. 4. The Respondent-Company filed their reply. It is contended that on 07.06.2016, that the Respondent-Company engaged in the business of manufacturing mild steel billets/ingots at the Industrial Estate, Cuncolim. It is further contended that the Company- named M/s. Indicaa Group Limited, is based in Dubai and supplies commodities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out that after 14 days, the said Shipping Company levied demurrage and detention charges for the 48 containers which amounted to a sum of Rs. 35,80,140/-. It is further pointed out that the Respondent-Company was not liable to pay demurrage and detention charges as the consignment was sent by said Indicaa Company. It is further pointed out that the Petitioner on behalf of the said Indicaa Company requested the Respondent-Company to make a part payment of the demurrage and detention charges amounting o Rs. 25,80,140/- with an assurance that the same would be subsequently re-imbursed to the Respondent-Company. It is further contended that remaining sum of Rs. 10,00,000/- would be arranged by the said Indicaa Company to be paid by the Respondent-Company to the Shipping Company and, accordingly, the Petitioner released an amount of Rs. 10,00,000/- through RTGS on 30.09.2014 on the Bank Account of Respondent-Company which was to be paid as demurrage charges for the remaining 48 containers. It is further submitted that the said amount of Rs. 10,00,000/- claimed by the Petitioners is not a lone but demurrage charges which the said Indicaa Company had undertaken to pay for the extra consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Respondent, a request was made to M/s Indicaa Company to clarify the issue and accordingly the Petitioner received a letter dated 21.07.2015 from M/s. Indicaa Company Limited stating that at no point of time, they had paid Rs. 10,00,000/- or any amount to the Respondent or through the Petitioners or any other entity and that the contention of the Respondent-Company that Rs. 10,00,000/- was paid by the said Indicaa Company in September-October 2013, is false. A letter to that effect is also produced. An affidavit of the Chartered Accountant Mr. Pandurang Nayak was also placed on record. He has stated that a sum of Rs. 10,00,000/- from the Petitioner on behalf of the Indicaa Company has been received by the Respondent-Company as payment towards the demurrage charges which were duly paid on 30.09.2013. An additional affidavit thereafter was also filed by Mr. Naik, inter alia, contending that the sum of Rs. 10,00,000/- has been reduced by the Respondent-Company from the expenses of detention and other charges paid on Port which are on the voucher. An additional affidavit was also filed by the Petitioners. It was further pointed out that in the course of the hearing, this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 8. On the other hand, Shri Sudin Usgaonkar, learned Senior Advocate appearing for the Respondent, vehemently disputes the contention of the Petitioner. It is submitted by the learned Senior Advocate that a transaction was entered between the Respondent-Company and M/s. Indicaa Company and that as the said Indicaa Company had supplied the products much in excess to the orders sent by the Respondent, the Respondent-Company could not clear the goods expeditiously despite of concession given by the Shipping Company and as demurrage charges were mounting, the said Indicaa Company offered to pay such charges to the Respondent so as to clear the goods. It is further submitted that such amount was adjusted towards the amounts due by the Respondent-Company to the said Indicaa Company and, as such, according to the learned Senior Advocate, there is no legally enforceable debt from the Respondents herein. Learned Senior Advocate further pointed out that the financial status of the Respondent-Company is in good shape and, as such, admitting the winding up Petition would cause grave prejudice to the Respondent-Company and its reputation. Learned Senior Advocate further submits that once the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , neither in the list annexed thereto M/s. Indicaa Company is shown as a debtor in connection with the subject transaction. In fact, the Respondents produced some ledger accounts along with additional affidavits but, however, the entries of the ledger accounts did not correspond to the vouchers produced by the Respondent- Company. The said inconsistencies in the piecemeal documents produced by the Respondents would itself show that the contention of the Respondent-Company that the amount of Rs. 10,00,000/- admittedly received from the Petitioner was on behalf of the Indicaa Company cannot be prima facie accepted.. Apart from that, the affidavit produced by the Petitioners would further corroborate the fact that M/s Indicaa Company did not admit that they have ever paid or agreed to pay the sum of Rs. 10,00,000/- on account of demurrage and detention charges. 10. The Judgment of the Delhi High Court reported in 1999 (49) DRJ 145 in the case of Jyoti Limited vs International Pumps & Projects relied upon by the learned Senior Advocate appearing for the Respondent, is not applicable to the facts of the present case. The Respondents are unable to point out that any material is suppress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends." Taking note of the said observations, I find that for the reasons stated herein above, the debt of Rs. 10,00,000/- claimed by the Petitioners has been prima facie established and there is not doubt prima facie that the Respondent-Company owes the said amount to the Petitioners, as the amount was admittedly paid to the Respondents by the Petitioners which they were otherwise not liable to pay in terms of the contract. 13. It was pointed out by learned Senior Advocate appearing for the Respondent-Company that grave injustice would occasion to the Respondent- Company in case any orders of admission is passed by this Court as it would gravely affect the activities carried out by the Respondent-Company as it would affect the interest of their secured creditors. But, however, it was pointed out by the learned Counsel appearing for the Petitioners that this Petition would ensure to the benefits of any such other creditors. 14. The Division Bench of this Court, Principal Seat at Mumbai, in the case of Videocon Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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