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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBRAMANIAN, J.
Credit Suisse AG A stock corporation registered under the laws of Switzerland, Carrying on business at Uetlibergstrasse 231 (C2), 8045 Zurich, Switzerland - Appellant
Versus
SpiceJet Limited, having its registered office Kamaraj Domestic Terminal, Chennai - Respondent
Company Petition No. 363 of 2015 & C.A. Nos. 887 & 888 of 2015 and 55 of 2020
Decided On : 06-12-2021
Companies Act, 1956 - Section 433(e) and (f), 434 (1) (a), 439 (1) (b), 448, 434 - Indian Stamp Act, 1899 - Section 3, 3(b), 2 (3) (b), 18 - Aircraft Act, 1934 - Sections 4A, 5(1), 2(g), 5(A)(1), 10(2) and 11A - Bombay Stamp Act, 1958 - sections 18 and 19 - Circumstances in which company may be wound up by Tribunal - Winding up of a Company, if it is found that Company is unable to pay its debts - Whether the respondent could be directed to be wound up on ground of inability to pay the debts, as provided under Section 433 (e) of Companies Act - Whether a notice of winding up could be issued under Section 433 of Companies Act 1956 - Whether Company Petition should be admitted and winding up should be ordered - Whether appellant Company deserves to be wound up or not – Held, reading of supplemental agreement would show that execution of the bills of exchange in support of invoices and execution of certificates of acceptance have been done by respondent Company in order to avail benefit of a six months deferred payment scheme - Therefore, it is clear that respondent Company had obtained an advantage of a deferred payment by execution of these documents and denial thereof, in my considered opinion, cannot be said to be bona fide - Having obtained an advantage under supplementary agreement and having executed documents as required, respondent cannot now seek to evade liability raising technical objections relating to stamping of instruments - Respondent Company had not chosen to terminate contract - It had continued to avail the services - It cannot now turn around and say, there is a violation of provisions of Aircraft Act or C.A.R. Rules made there under and therefore liability ceased - Company Petition should be allowed and respondent Company directed to be wound up - Official Liquidator is directed to take over the assets of respondent Company - Petitions are disposed of.
JUDGMENT :
(Prayer: Company Petition filed under Section 433(e) and (f) read with Section 434 (1) (a) and 439 (1) (b) of the Companies Act, 1956, praying to a) Order for winding up of the respondent under the provisions of the Companies act, 1956; b) Appoint the Official Liquidator, High Court, Madras as the Liquidator of the respondent with all powers under Section 448 of the Companies Act, 1956 to take charge of the assets, properties, stock in trade and books of accounts of the Company; c) Order costs of this petition.)
1. The petitioner, as a stock corporation registered under the Laws of Switzerland, seeks winding up of the respondent for the alleged inability to pay the debts under Section 433 (e) and (f) read with Sections 434 and 439 of the Companies Act, 1956.
2. According to the petitioner, the respondent which is a private Sector Airline had availed of the services of a Company named SR Technics, Switzerland, for maintenance, repair and overhauling of Air Craft Engines, modules, components, assemblies and parts which are mandatory for its operations. An agreement for performance of such services for a period of 10 years was entered into between the respondent and S.R.Technics on 24.11.2011. The terms of payments were also agreed. On 24.08.2012 a supplemental agreement was entered into to change certain terms of the agreement. The amendments included extension of time for payment of monies due under various invoices raised by SR Technics and also a deferred payment scheme. Since there was a general increase in the cost, the supplemental agreement dated 24.08.2012 included adjustment of flight hour rates and provisions for escalation were also made.
2.1. Upon provision of the services under the agreement, SR Technics had raised invoices and the respondent had issued seven bills of exchange for the monies due under the invoices. The respondent also acknowledge the debts from time to time by issuing certificate of acceptance in relation to the bills of exchange which would imply that the respondent had not disputed the correctness of the claim made in the invoices. The details of the seven invoices are as follows:
| S. No. | Date | Invoice Amount and reference no. | BOE issuance | Certificate of Acceptance |
| 1. | 30.07.2013 | USD 3,075,603.12 out of the invoice value of USD 4,134,733.75 bearing reference No.M90204840 | Issued in Zurich and payable at Yes Bank, New Delhi on January 26, 2014 | Certificate of Acceptance executed between respondent and SRT in relation to invoice No.M90204840 |
| 2. | 09.08.2013 | USD 4,414,567.04 bearing reference No.M90205479 | Issued in Zurich payable at Yes Bank, New Delhi on February 5, 2014 | Certificate of Acceptance executed between respondent and SRT in relation to invoice |
| 3. | 22.08.2013 | USD 1,783,372.69 bearing reference No.M90206294 | Issued in Zurich payable at Yes Bank, New Delhi on 18th February 2014 | Certificate of Acceptance executed between respondent and SRT in relation to invoice No.M90206294 |
| 4. | 18.10.2013 | USD 874,149.79 bearing reference No.M90210188 | Issued in Zurich payable at Yes Bank, New Delhi on 16, | Certificate of Acceptance executed between |
| 5. | 25.10.2013 | USD 4,790,898.30 bearing reference No.M90210595 | Issued in Zurich payable at Yes Bank, New Delhi on April 23, 2014 | Certificate of Acceptance executed between respondent and SRT in relation to invoice No.M90210595 |
| 6. | 04.12.2013 | USD 4,637,863.11 bearing reference No.M90213609 | Issued in Zurich payable at Yes Bank, New Delhi on J | |
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