TaxTMI 
TaxTMI 
2013 (7) TMI 106
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....signs the receivables under its commercial transaction to the Factor, and also specifically makes itself liable for rendering all outstanding amounts to the Factor, in the event of the purchaser of goods defaulting in making payment of the borrower's receivables to the Factor. The 'purchaser of goods' in the present case is the Respondent company, i.e., Koutons Retail India Ltd. Effectively, what the Borrower would do in this transaction is to sell goods to its purchaser (i.e. the Respondent hereto, in the present case); and in consideration of the Borrower executing the relevant factoring documents, it would then be paid an agreed part of the value of the said goods by the Factor (in this case, 80% of the value of the invoice), i.e., the Petitioner. Thereafter, both the purchaser of goods, which is the Respondent hereto in the present case (referred to in the transaction as 'Approved Debtor') and the seller (i.e. the'Borrower' in the factoring transaction) would be liable to make payments to the Factor, until receipt of all dues under the transaction by the Factor." 3. An agreement of factoring of receivables (hereafter 'factoring agreement') was executed on 18th February 20....
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....oned that there are several other creditors who have filed petitions seeking the winding up of KRIL. On 14th February 2013 a batch of such petitions was heard by the Court. This included the present petition as well, KRIL was given a final opportunity till 18th February 2013 to file a proper affidavit clearly indicating its proposal to repay the outstanding dues of the unsecured creditors. On 18th February 2013 an affidavit was tendered in Court by KRIL. Although para 21 of the affidavit purported to deal with all the petitions, including the present one, filed against KRIL, it did not indicate the amounts owing to IFL in the present petition. Learned counsel for the KRIL then sought time to file an additional affidavit. On 20^th February 2013 an additional affidavit was filed by KRIL stating that it did not owe any amount to IFL. The present petition was delinked from the batch of petitions and directed to be listed separately by an order dated 1^st March 2013. The right of KRIL to file a reply was closed. Thereafter, the petition was heard on 15th March 2013, 10th April 2013 and today, i.e., 13^th May 2013. 8. This Court has heard the submissions of Ms. Anjali Sharma, learned ....
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....Mediquip Systems Pvt. Ltd. v. Proxima Medical System GMBH (2005) 7 SCC 42, Medison Communications Pvt. Ltd. v. Som Distilleries and Breweries (2005) 126 Comp Cas 786 (Del), Bhourka Steels Ltd. v. Suresh and Suresh Wires Pvt. Ltd. (1996) 86 Comp Cas 734 (A.P.), Laguna Holdings Pvt. Ltd. v. Eden Park Hotels Pvt. Ltd. [Company Petition No. 62 of 2008], Registrar of Companies v. Navjivan Trading Finance Pvt. Ltd. (1978) 48 Comp Cas 402 (Guj), Madhusudan Gordhandas & Co. v. Madhu Wollen Industries Pvt. Ltd. AIR 1971 SC 2600, Aventis Crosscience India Ltd. v. Nelgiris Fertilizers Ltd. (2005) 125 Comp Cas 139 (Mad), Akolla Suryanaryana Road v. Dwarapudi Basivireddi AIR (1932) Mad 457, Chhangamal Harpaldas v. Dominan of India AIR (1957) Bom 276, Shantilal Khusaldas & Bros Pvt. Ltd. v. Chandan Bala Sughir Shah (1993) 2 Bom CR 651, Meera & Co. Ltd. v. Archies Greetings & Gifts Ltd. [decision dated 17th July 2002 in Co. Pet. No. 320 of 2002]. 11. Ms. Anjali Sharma, learned counsel for the IFL pointed out that notwithstanding the fact that legal notice was not sent at the registered office of KRIL, the winding up petition would still be maintainable under Sections 433 (e) read with Section ....
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....cals Ltd. (1994) 79 Comp. Cas 835." 13. Even if the legal notice in the present case was not served KRIL at its registered office, there is no denial by KRIL that it in fact received such notice. Also as explained by the Court in Kalra Iron Stores v. Faridadbad Fabricators (P) Ltd, as long as IFL is able to demonstrate that there is an admitted liability which KRIL has been unable to pay, it can pursue this petition. 14. It is not in dispute that IFL issued KRIL two notices issued on 30^th November 2010 where the total sum claimed was Rs. 1,80,21,139. It is not in dispute that PDCs to that extent issued by KRIL were dishonoured. The issuance of such PDCs constitutes an acknowledgment of liability by KRIL. It also is a demonstration of the inability of KRIL to pay the said amount. Therefore, even if the amount claimed in the petition is Rs. 3.33 crores, i.e., the amount due as on the date of the petition, that will not make difference to the fact that there is an admission by KRIL of its liability to pay Rs. 1,80,21,139 to IFL. 15. The defence taken by the KRIL that it was not aware of the factoring agreement deserves to be rejected. The letter dated 16th February 2010 issu....
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.... should not be able to avoid the statutory demand. The law should be allowed to proceed and if demand is not met and an application for liquidation is filed under Section 439 in reliance of the presumption under Section 434(1)(a) that the company is unable to pay its debts, the law should take its own course and the company of course will have an opportunity on the liquidation application to rebut that presumption." 17. It may be mentioned at this stage that IFL has filed Co. Pet. No. 471 of 2011 against KRIL under Section 433 (e) and 434 read with Section 439 of the Act. In that petition, a detailed order has been passed by the Court on 7^th May 2013 appointing the Official Liquidator ('OL') attached to the Court as PL. However, the said order has been kept in abeyance for a period of eight weeks to enable KIPL to make payment of the admitted sum together with up to date interest. In the said order, the Court noted the statement made by learned counsel for IFL in that case "to the extent that KIPL is able to pay the amount owing to IFL, the claims against KRIL to that extent would stand abated. In any event, that is contingent upon KIPL being able to make good the entire amount....