Judgment:
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on:
12. h July, 2017 Pronounced on:
4. h August, 2017 + CO.PET. CO.PET. 189/2016, CA No.1141/2017 AI-RAWAS MINING CO. LLC ........ Petitioner
Through : Mr.Vinam Gupta, Advocate. versus ASA PORTFOLIO PRIVATE LIMITED ..... Respondent Through : Mr.Manish Kaushik, Ms.Ananya Sharma, Pandey, & Mr.L. Advocates. CORAM: HON'BLE MR.JUSTICE YOGESH KHANNA YOGESH KHANNA, J.
1. Respondent placed a purchase order dated 04.05.2013 upon the petitioner company for supply of 57,300 metric tons of Natural Gypsum in bulk through the carrier vessel : MV STELIOS B. The petitioner raised the commercial invoice dated 09.05.2013 for the total consideration of USD744,900 and supplied the agreed quantity of Natural Gypsum in accordance with various bills of lading through sea transport. The shipments were duly received by the respondent. In addition, the petitioner claims to have incurred crane charges for Gearless vessel: MV RODON on behalf of the respondent company for USD55425.23 against which a debit note was raised on 21.04.2013. The copies of invoice dated 09.05.2013; the Bills of lading as also the debit Co. Petition No.189/2016 Page 1 of 10 note dated 21.04.2013 are annexed with the petition. Hence, a total amount of USD800,325.23 was due and payable by the respondent to petitioner. Though towards discharge of its liability the Respondent had made some part payments but still an amount of USD243,925.43 is due and outstanding against it. The detail of the amounts so received on account as part payments are mentioned in the petition. It is alleged that despite its admitted liability, the respondent had failed to honour its commitment and had ignored the correspondences made in this regard. It is alleged that though the respondent always pretend to send the money but failed to remit it on flimsy grounds viz, RBI guidelines or unavoidable banking formalities and hence continued to be in default, despite assurances.
2. The respondent had evaded to reply to emails and to the statutory notice of demand dated 25.02.2015 sent at its registered office, received by it on 03.03.2015 hence this company petition.
3. In reply the respondent has alleged that the petitioner though had a mine but no adequate capital and hence it requested the respondent for induction of capital and to market its produce. The respondent invested in the business of petitioner under a mutual agreement wherein the clients/purchasers were to be brought in by the respondent but to be dealt with only through the respondent and that the petitioner would in no manner shall bye-pass the respondent in dealings. It is alleged that the respondent introduced ACC, its client to the petitioner and the business was smooth but however a dispute arose between the parties on arrival of a new company M/s.Dhofar who initially approached the respondent for Co. Petition No.189/2016 Page 2 of 10 supply of Gypsum to ACC, but as the respondent declined, the petitioner offered its Gypsum to M/s Dhofar at different rates thus reducing the profit margin of respondent. The petitioner and M/s Dhofar then started doing business with ACC and various other parties of the respondent. The respondent vide its email dated 15.10.2013 protested the breach of the business arrangement and also about a loss of `3.60 Crore caused to it, and demanded reimbursement vide email dated 24.03.2015. It is alleged by the respondent that the petitioner company has since been taken over by a new management, - not aware of its earlier arrangements is simply feigning ignorance over the claims of the respondent. The defence is the petitioner is rather liable to compensate the respondent for a sum of `3.60 crore in view of the investments made by the respondent and for the losses suffered by it on account of breaches. The debt thus is disputed by the respondent.
4. One needs to look into the documents/ correspondence exchanged between the parties to find if the debt is a disputed one.
5. The balance sheets filed by the respondent of the year from 01.04.2013 to 31.03.2014 and from 01.04.2014 to 31.03.2015 show the petitioner to be a creditor to the tune of `1,02,39,879/-. Strangely in the credit summary of sundry creditors from 01.04.2014 to 31.03.2015 the respondent had shown the petitioner as a debtor to the tune of `3.60 crore in contrast to the balance sheets of the year from 01.04.2013 to 31.03.2014. However in the list of sundry creditors from 01.04.2015 to 31.03.2016, yet again the petitioner is shown as a sundry creditor to the tune of `1,02,39,879/-. Now the court need to examine whether the entry Co. Petition No.189/2016 Page 3 of 10 in sundry debtor, made by the respondent is genuine or is a step to camouflage.
6. A bare look at the claim of the petitioner would show the purchase order dated 04.05.2013 is for purchase of 53,000 MT of Natural Gypsum with a price quoted at USD1310 per MT and FOB Salalah as per payment of 100% direct, within seven days as per receipt of the document. Copy of purchase order is filed on record.
7. The copy of invoice No.0086 dated 09.05.2013 for a sum of USD744,900 and the bills of landing(s) for the entire shipment are on record and there is no dispute qua the same. Even the certificate of origin of goods from Oman and the debit note qua the hiring of crane for loading of Gypsum in the quantity of 71.96 MT to vessel MV RODON for USD55425.23 is filed.
8. The correspondence between the parties makes an interesting reading. Email dated 21.06.2013 at 01.33PM sent by Mr.Akhil Singh of the respondent company reads as under:-
"“Dear All, As stated and hereby we are committing that we will provide you the swift for Balance Payment of MY Stelios B Maximum by Tuesday hence we are trying to make the things possible by Monday itself. We request you to kindly bear with us till the said time. best regards, Akhil Singh” Co. Petition No.189/2016 Page 4 of 10 Email dated 25.06.2013 at 12.04PM sent by Mr.Rohit Khurana of respondent reads as under:-
"“Dear Mr Alam, We are sorry for the inconvenience, Today we are transferring the payment and you will get swift copy by eod. Meanwhile we will sending the Bank acceptance copy in another one hour. Regards Rohit” Email dated 25.06.2013 at 05.48PM sent by Mr.Rohit Khurana of respondent company reads as under:-
"“Dear Mr Alam Kindly find the bank acceptance letter. We have transferred the· amount of 167,000 USD in our account today, which will be credited in your account latest by today night or by tomorrow. And balance payment will be tomorrow. We are very sorry for the inconvenience. Regards Rohit” transferred Email dated 27.06.2013 at 11.35AM sent by Mr.Akhil Singh of respondent company reads as under:-
"“Dear, We will give you both the EOD. Also we request you to sent LIA Documents for further processing to avoid any further delay. Regards, Akhil” Co. Petition No.189/2016 Page 5 of 10 Email dated 01.07.2013 at 01.59PM by Mr.Rohit Khurana of respondent company reads as under:-
"“Dear Mr Alam Already we have send the instruction to the bank for balance payment of MV Stelios B USD390000. But today as per RBI no transactions can be placed, so bankers are unable to do the remittance. We apologize for the delay, tomorrow you will be getting the swift copy of balance payment. Regards, Rohit” Email dated 01.07.2013 at 10.17AM reads as under:-
"lower 54 “Dear Jahangir, Full Balance payment has been processed for Stelios B Our team will give you bank acceptance copy as will try to give you swift as well by or before tomon-ow EOD, hereby we request you to kindly send LIA documents as we need to shift material from port. regards. Akhil” Email dated 02.07.2013 at 18.06 HRS from Mr.Rohit Khuarana of respondent company reads as under:-
"“Dear Mr Alam, Kindly find the swift copy for remittance of USD386261/- against invoice No.0089 of M V L1A. Due to some banking formalities our banker were unable to remit the M V Stelios B payment. Meanwhile we request you to send the M V Lia documents. Regards Rohit.” Co. Petition No.189/2016 Page 6 of 10 Email dated 26.07.2013 at 17.25 hrs sent on behalf of respondent company reads as under:-
"“Dear Stelios balance swift will send you on Monday. Regards, Akhil” The petitioner’s email dated 27.07.2013 at 13:59:43 hrs is as under: “Dear Mr Akhil, Thanks for your below mail, we are awaiting your balance payments, because supplied & service provider behind us & we are unable to manage then, hope you have understand the situation. Thanks & regards, Best regards” The respondent response to above mail is as under:-
"“Dear Monday we will send you full bal stelios payment. Regards, Akhil” Email dated 05.08.2013 at 16.10 reads as under:-
"“Dear, Please find the bank acceptance letter and balance for MV Stelios will be remitted in a day or 2. Transfer amt: USD70150 Kindly confirm the safe receipt. Regards, Akhil” Email dated 10.10.2013 sent at 01.54PM to respondent is as under:-
"Co. Petition No.189/2016 Page 7 of 10 “Mr. Suchail Kindly reminding you, our overdue balance with you is USD243925.23 and please let us know when we can expect our balance payment as you mentioned in our last week discussion over the phone it's matter of 1 week to finalize it but it’s going to take longer than that so kindly plz awaiting for you urgent action within this week. And also note that our bank account remaining same as mentioned our Commercial Invoices. Awaiting your kind cooperation, coordination & reply in this matter. Best regards, Hossam Mustafa Executive Officer – Marketing” In response to above, the respondent had sent the following email dated 10.10.2013 at 16.08 read as under:-
"“Dear All, We will be processing the stelios B pay asap. Regards, Akhil” 9. The petitioner alleges that despite the respondent having promised to make the payment of outstanding dues umpteen times no payment was made. A statutory winding up notice was thus given on 25.02.2015 to the respondent company requiring it to clear the amount due within 21 days, served upon the respondent on 03.03.2015. The respondent did not respond.
10. The emails above do show the respondent never raised any objection qua the quality of the goods or deficiency in service. The case now put by the respondent is it has been paying the petitioner not for the purchase of the goods but contributing as an investment and when the Co. Petition No.189/2016 Page 8 of 10 petitioner started dealing with ACC directly in connivance with M/s Dhofar it caused huge loss to the respondent. If that was so, then why its emails did not reveal an iota of such averments. Moreso, in its email dated 05.08.2013 the respondent admittedly was transferring an amount of 7,01,500. If the respondent was paying advances or was merely investing in business then why he was promising as a debtor to the petitioner asking for time to clear its dues and making excuses. The respondent, though has annexed an email dated 15.10.2013 raising its concerns of the petitioner dealing with M/s Dhofar but it does not give a hint that respondent was in any way a partner to the petitioner or ever invested any money, as alleged. Another email dated 24.03.2015 of defendant is after receipt of the statutory notice probably given to create a dispute in anticipation of a legal action which could be taken by the petitioner. In rejoinder the petitioner has denied allegations of having any common business with respondent or the respondent having suffered any loss while dealing with it.
11. The facts rather show the respondent had neglected to pay to the petitioner due to its relations becoming sour after October 2013 when the petitioner decided not to transact any further business with it. The respondent then blocked the balance payment. Despite the petitioner being shown, in its sundry creditors list till the year ending on 2014, the respondent suddenly showed the petitioner as a sundry debtor for the alleged losses it suffered on account of the conduct of the petitioner is nothing but a plot to avoid due payments to the petitioner which it neglected to pay despite promises made. The respondent failed to prove Co. Petition No.189/2016 Page 9 of 10 that its debt is a disputed debt. Its neglect to pay the balance amount without any cogent or sufficient ground rather reveal its inability to pay, hence there is no reason as to why the company petition be not admitted against the respondent.
12. In view of the above, this petition is admitted.
13. Citation be published in the "Statesman" (English edition) and "Jansatta" (Hindi edition) in accordance with Company (Court) Rules, 1959.
14. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount found already due and payable to the petitioner with interest at the rate of 8% per annum with effect from 25.02.2015 when the statutory notice was served on the respondent company. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the Provisional Liquidator.
15. List for further directions on 26th September, 2017. CA No.1141/2017 16. In view of above order the application stands disposed of. YOGESH KHANNA, J AUGUST04 2017 M Co. Petition No.189/2016 Page 10 of 10