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2007 Supreme(Cal) 112
High Court Of Calcutta
Before Sanjib Banerjee, J.
RAGHUNATH EXPORTS LTD. - Appellant
Versus
PAREKH MARINE AGENCIES PVT.LTD. - Respondent
C. P. 64 Of 1999
Decided On : 02/22/2007
Raj Ratna Sen, RATNANKO BANERJEE, RITABRATA MITRA
Headnote:
WINDING UP PETITION - ADMISSION - COMPANY'S DEFENCE - DISPUTE RAISED - SUIT PENDING - CREDITOR'S WINDING UP PETITION - COMPANY'S SUIT - MERITS OF DISPUTE - PROBE - COUNTER-CLAIM - GENUINENESS - CROSS-CLAIM - WINDING UP ORDER - DISCRETION - COMPANY COURT'S JURISDICTION - SECURITY - FURNISHING - ORDER FOR SECURITY - CREDITOR'S WINDING UP PETITION - COMPANY'S INDEBTEDNESS - ADMISSION - PRIMA FACIE VIEW - CONDITIONAL ORDER - COMPANY'S OPTION - ADVERTISEMENT - PUBLICATION - SECOND AFFIDAVIT - COMPANY'S RESISTANCE - FINAL STAGE - DISCRETION - COMPANY'S SUIT - RESTRAINT - RECEIVING STAGE - BOUNDS OF AUTHORITY.
Fact of the Case:
The company resisted an order of admission sought on a creditor's winding up petition not only on the basis of the dispute it claimed it had raised but also on the propriety of the company Court in inquiring into the merits of the dispute as a suit founded on such dispute has been instituted by the company.
Finding of the Court:
The company's suit is not demurrable, it would not be proper to restrain the company from proceeding with the suit, if it is otherwise entitled, though the authority of the company Court for making such order is found in the SRC steel case.
Issues: 1. Whether the company Court can inquire into the merits of the dispute when a suit is pending? 2. Whether the company can be restrained from proceeding with its suit? 3. Whether the company Court has the jurisdiction to order for security in a creditor's winding up petition?
Ratio Decidendi: 1. The merits of a counter-claim, even in a confession and avoidance situation, can be probed into in the company Court deciding the matter before it. 2. The company Court may restrain the company from proceeding with its suit, if it is otherwise permissible, at the final stage of the proceedings, upon the company having exhausted its further chance of discrediting the petitioner's claim. 3. The company Court has the jurisdiction to direct security to be furnished in a creditor's winding up petition.
Final Decision: The company petition is admitted for the petitioner's principal claim of Rs. 7,34,526.40 together with interest at the rate of nine per cent per annum from December 24, 1997. The petition will be advertised once in "the Statesman" and once in "sanmarg". In the event the company furnishes security by way of bank fixed deposit receipts in the name of the Registrar, Original Side, for the entire sum, inclusive of interest, and together with a margin of two per cent on such sum to provide for the Registrar's commission and expenses, if any, within a period of three weeks from date, the petition need not be advertised.
( 2 ) THE company resists an order of admission sought on a creditor's winding up petition not only on the basis of the dispute it claims it has raised but also on the propriety of the company Court in inquiring into the merits of the dispute as a suit founded on such dispute has been instituted by the company. It is irrelevant, according to the company, whether the suit was instituted before or after receipt of the statutory notice ; that a suit is pending and that the same is not demurrable is enough to ward off winding up proceedings against the company touching upon such matters.
( 3 ) THE petitioner was the carrier of goods shipped by the company. The goods were to be partly carried by sea and partly by road. They were to be discharged by the vessel at Felixstowe in the United Kingdom and carried by road to Speke in containers. According to the petitioner, upon the cargo being discharged at Felixstowe, it was discovered that one of the containers was damaged and four others were found to contain more than the rated payload and three of the containers weighed more than the weight permissible in the country of discharge. The petitioner contends that following negotiations between the Chinese principal of the petitioner and the company, the company accepted that it would bear the additional charge for devanning at Felixstowe for further carriage by road to Speke upon maintaining the permissible limits.
( 4 ) A writing of November 18, 1997 executed by the company has been relied upon. The writing refers to 7 X 40 containers and appears to be unconditional in the following assertion :
"we accept responsibility and all/any costs which are incurred in any way in connection with stripping/delivery of cargo - any govt. fine for overnight vehicle -as well as hold Choyang Line blameless in respect of any damage to cargo and the like - make their own arrangements in conjunction directly with receiver to delivery any cargo devanned from containrs. "
Cho Yang line referred to in the message is the principal of the petitioner.
( 5 ) THOUGH the mode of urgent communication by telegraph or teleprinter is now obsolete, it is evident from the message that the old habit of dropping verbs from sentences and vowels from words continue in the shipping business. According to the petitioner, the opening words of the message, "we accept responsibility and all/any costs which are incurred. . . " read with the further representation, "as well as hold Choyang Line blameless in respect of any damage to cargo. . . " implied both an acceptance of liability of unprescribed limit, and waiver of any claim on account of damage to the cargo. The petitioner claims that the expression "and the like" following the word 'cargo' completely absolved the petitioner of any liability on account of any damage whatsoever and any damage to any container would be covered within its fold.
( 6 ) SHORTLY upon the cargo being delivered, a bill for 11207. 30 was raised in a writing issued by the petitioner to the company on December 24, 1997. The brief break-up of the charges as conveyed by the petitioner to the company was spelt out thus :
WEIGHING EXPENSES CNTR STRIPPING CHGS (PART D/v x 6 + 1 FULL D/v) GBP 811. 50 CNTR DEMURRAGE GBP 5351. 00 REPAIRS TO CYLU 4142544 GBP 1077. 00 LO/lo 6 @ GBP 60 (LESS PREPAID Dih 7 @ GBP 270) GBP 1530. 00 SHED RENT FOR STRIPPED CARGO GBP 4970. 00 TOTAL GBP 11207. 30 GBP 527. 80
( 7 ) THE writing also indicated that on that day the pound commanded a rate of Rs. 64. 54.
( 8 ) THE petitioner has asserted that no dispute of any nature was raised by the company within any reasonable period after receipt of the said writing of december 24, 1997 and that the company had assured the petitioner (though no writing to such effect has been relied upon) that the payment would be made. A statutory notice of July 17, 1998 was
