HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
Company Petition No.57 of 2011
Date:16.09.2014 Between:
Cargill International SA, Switzerland, reptd by Sri Vikas Goyal, Constituted Attorney And:
M/s ESSKAY SHIPPING (P) LTD, Visakhapatnam.
……Petitioner ….Respondent Counsel for the petitioner: Sri N.B.Sudarshan Counsel for the respondent: Sri Deepak Misra The Court made the following:
ORDER:
This Company Petition is filed for an order to wind up the respondent for non-payment of the debt allegedly due to the petitioner.
I have heard learned counsel for the petitioner and perused the record.
The petitioner averred that it was incorporated under the Companies Act, 1956 (for short ‘the Act’) in the name and style of Cargill International SA on 31.05.2000; that its objects, inter alia, are to engage in the business of International trading of raw materials including the agricultural, food and petroleum products, etc; that the respondent was incorporated under the Act in November, 1994; that is registered office is at Visakhapatnam; and that its main objects, inter alia, are to establish, maintain, undertake and carry on the trade and business of Stevedores in all its branches and the business of shippers, ship owners, ship brokers, ship repairers, steamer agents, ship managers and all ancillary services and for the purposes of purchase, take in exchange, charter, hire, build, construct or otherwise acquire and to own, work, manage and trade with steam, sailing, motor and other ships, trawlers, etc.
The petitioner further averred that the respondent approached it and expressed its desire to act as its shipping Agent in India for the purpose of clearance of import consignments in India; that the petitioner has, accordingly, remitted into the respondent’s account a sum of US $3,76,379/- equivalent to Rs.1,67,18,755.18 on 29.04.2010 for handling of the petitioner’s vessel, viz., M.V. Vogelbulker (for short ‘the vessel’); that the said vessel arrived at Gangavaram port on 29.04.2010 and it was in the said port till 30.04.2010; that as per the respondent’s invoice, amount of disbursement on account of the said vessel was Rs.62,66,387/- and the same was debited to the petitioner’s account for handling the import consignment to the local importers of coal from the vessel at the said port; that the respondent has admitted that after the disbursements in relation to the services for handling the goods from the said vessel, an amount of Rs.1,04,52,368/- was still lying with it; that the vessel was further handled by the respondent at Krishnapatnam port in relation to import consignments to the local importers of coal from the vessel and a sum of Rs.69,51,278/- was further appropriated by the respondent on this account; that after such appropriation, a sum of Rs.35,01,090/- was still lying with the respondent; and that the said fact was acknowledged by the respondent in its various e-mails, dated 17.07.2010, 15.10.2010, 24.11.2010 and 23.12.2010. The petitioner filed copies of the said e- mails along with the Company Petition.
It is further averred that as the respondent failed to return the sum of Rs.35,01,090/- to the petitioner, despite several efforts made by the latter, it has caused statutory notice, dated 06.01.2011, on the respondent under Section 434 of the Act, wherein the respondent was called upon to pay the said amount with interest at the rate of 18% per annum; and that the respondent has sent reply, dated 26.02.2011, to the said notice, wherein it has admitted its liability. The petitioner alleged that since the respondent failed to make any payment despite the debt being admitted, it has filed this Company Petition.
Sri Deepak Misra, learned counsel for the respondent, has filed memo, dated 15.09.2014, wherein he has informed that he has sent notice to the respondent on 04.09.2014 which was received by the latter on 08.09.2014 and that despite the said notice, the respondent has not sent any instructions to him. Learned counsel has, therefore, reported no instructions to file counter-affidavit.
As the respondent failed to file a counter-affidavit denying the contents of the Company Petition, all the above-noted averments remained uncontroverted.
A perusal of the e-mails referred to above would show that the respondent has clearly admitted the fact that the amount belonging to the petitioner is lying with it as an unspent balance amount. In its reply, dated 26.02.2011, sent to the statutory notice, the General Manager (Finance) of the respondent has clearly informed the petitioner that due to delay in realization of their dues from the reputed principals, they could not meet the financial commitment on time and that if some more time is granted to them, they will be able to remit the amount.
In the face of these unequivocal admissions by the respondent of the debt due to the petitioner and its failure to pay the admitted debt, the Company Petition is admitted. The petitioner is directed to cause publication in two daily newspapers, viz., Business Standard (English) and Andhra Jyothi (Telugu) having circulation in the State of Andhra Pradesh within 45 days from today and file proof of publication.
Post on 04.11.2014 for filing proof of publication.
16th September, 2014 DR
JUSTICE C.V.NAGARJUNA
REDDY