TaxTMI 
TaxTMI 
2013 (5) TMI 1077
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.... by a memorandum of understanding dated 17/09/2007 between Huawei, Teracom and Teracom's wholly owned subsidiary, Nextera Telecom Private Limited ('Nextera' for short) and a bid- cooperation agreement dated 17/09/2007 between Huawei and Teracom. In November, 2007, the bid of Teracom and Huawei was accepted by BSNL and BSNL issued the advance purchase order dated 26/11/2007 on Teracom. The total purchase order amount payable by BSNL to Teracom for the goods was INR 179,03,78,825/-. As per their prior contractual understanding, Teracom and Huawei entered into three supply contracts, two of which were entered into on 04/01/2008 and the third one on 27/03/2008. The respondent also entered into two supply contracts on 04/01/2008 with Huawei, the terms of which are identical with minor variations. In terms of the said supply contracts, Huawei and Teracom agreed upon the technical specification for the goods as also issue pertaining to packing, marking, inspection, testing, quality, indemnities and warranties with respect to the goods. 4. Thereafter on 31/01/2008 and 16/05/2008, Huawei and Teracom mutually agreed to involve the petitioner i.e. M/s. Sojitz Corporation ('....
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....had not been forthcoming. The petitioner was concerned by the non-receipt of the payments due to it from the respondent and, therefore, from 2009 till October, 2011, the representatives of the petitioner and the respondent held number of meetings to discuss the issue pertaining to outstanding payments due from the respondent to the petitioner. In such meetings, the representatives of Huawei were also involved. The respondent represented that delay in receipt of payment from BSNL was on account of faulty goods and once these defects were rectified, the same would aid in clearances of outstanding dues. It is further the case of the petitioner that the petitioner acted as bridge between the respondent and Huawei to facilitate the resolution of outstanding technical issues and the participation of the representatives of the petitioner was not on account of any contractual responsibility under the procurement agreement or any other document but was a bonafide voluntary gesture to resolve the dispute between the respondent and its supplier Huawei. Minutes of the meetings held between the representatives of the petitioner and the respondent on 04/11/2009, 24/01/2011 and 14/10/2011 and als....
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....d paid Rs. 50.70 Crores and the balance was outstanding. According to the petitioner, the respondent had acknowledged indebtedness to the petitioner to the tune of Rs. 83.01 Crores, although much higher amount was due by the respondent to the petitioner. 9. On 21/11/2011, the petitioner, respondent and Nextera executed a memorandum of understanding (MOU) inter alia confirming that the sole role of the petitioner with respect to the purchase and delivery of goods from Huawei was that of financier and the same acknowledged the balance confirmation letter dated 19/10/2011 and as such, the respondent acknowledged its liability to the petitioner in terms of the balance confirmation letter dated 19/10/2011. 10. Thereafter, correspondence ensued between the petitioner and the respondent. Upto December, 2011, a sum of Rs. 5 Crores was paid by Teracom/Nextera to the petitioner under MOU and thereafter, no payment was made and as of July, 2012, an amount of INR 57 Crores remains outstanding. 11. In February, 2012, the respondent and Nextera filed a Civil Suit No.OS 219/2012 in the Court of Senior Civil Judge, Gautam Budh Nagar, Uttar Pradesh against the petitioner and Huawei inter a....
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....the petitioner can be styled as a seller of the goods in the light of the contentions of the four procurement agreements. It was submitted that the documents, more particularly two documents dated 13/10/2011 and 19/10/2011 clearly suggest that the respondent acknowledged its liability, but to the extent of lesser amount as claimed by the petitioner and the defence taken by the respondent that it does not owe any amount under the procurement agreements, is patently false. According to the petitioner, there is neither rescission nor novation of the procurement agreements in view of the memorandum of understanding dated 21/11/2011 entered into between the parties and the petitioner is though the financier, in order to protect its financial interest, intervened to bring about settlement between the respondent and BSNL, in view of the claim made by BSNL that the goods supplied were defective. It was further argued that the defence taken by the respondent that signature of C.M.D. has been forged, is nothing but an afterthought and taken with a view to avoid its liability under the four procurement agreements and to avoid any order of winding up of the Company. It was further argued that ....
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....3. (xii) Western Indian Theatres Ltd. Vs. Ishwarbhai Somabhai Patel; 1959(29) Comp. Cases 133 (Bom). (xiii) Malhotra Steel Syndicate Vs. Punjab Chemi- Plants Limited; 1989(65) Comp. Cases 546 (P&H.) (xiv) Malhotra Steel Syndicate Vs. Punjab Chemi- Plants Limited; 1993 Supp(3) SCC 565. (xv) In Re: The India Electric Works Ltd.; AIR 1970 Cal 398. (xvi) Welding Rods (P.)Ltd. Vs. Indo Borax & Chemicals Ltd.;(2002) 108 Comp. Cases747 (Guj.) (xvii) Associated Journals Ltd. Vs. The Mysore Paper Mills Ltd.; AIR 2006 SC 2695. 17. The case of the respondent in brief is as under : The stand of the petitioner that it was only a trade financier with respect to the goods supplied to the respondent under four procurement agreements dated 31/01/2008, 01/04/2008, 29/04/2008 and 16/05/2008 is not correct. In fact, the petitioner is a seller of the goods and the petitioner is engaged in the business of international trading and purchased goods from Chinese company Huawei and sold the goods to the respondent in terms of the procurement agreements. According to the respondent, the same is evident from the invoices raised by it. It is the case of ....
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....r. Without prejudice, it has been further submitted that the respondent is ready to pay the said amount as and when the petitioner raises invoice and also is ready to secure the said amount by way of bank guarantee, if directed by this Court. Similarly, the respondent is also ready and willing to submit bank guarantee in respect of the overdue interest of JPY 1,398,933/-. In support of the submissions, the respondent has relied upon the following judgments : (i) Tayal Potteries and another Vs. Macroplast (P) Ltd. (2001)103 Comp. Cases 404(All). (ii) Mool Chand Wahi Vs. National Paints (Private Ltd. And Anr.); MANU/PH/0241/1986. (iii) Mool Chand Wahi Vs. National Paints P. Ltd and Anr.; MANU/PH/0219/1983. (iv) Shantilal Khushaldas and Bros. Pvt. Ltd Vs. Smt. Chandanbala Sughir Shah and another; (1993)77 Comp. Cases 253 (Bom). 18. On behalf of the respondent, submissions were made in consonance with averments made in the affidavits filed on behalf of the respondent, opposing the winding up the petition. It was contended that the petitioner, though styled itself as trade financier in the procurement agreements, having regard to the terms and cond....
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....and since the petitioner breached these terms, the respondent has been compelled to file the suit before the District Court of Gautam Budh Nagar at Noida. It has been further urged that the parties are governed by Indian Laws and more particularly Sale of Goods Act, 1930 and the submission made on behalf of the petitioner that English Law will apply is without any merit inasmuch as all the procurement agreements were executed at New Delhi, India and the goods were supplied in India. It has been further urged that the memorandum of understanding dated 21/11/2011 entered into between the petitioner and the respondent is novated and rescinded and in the earlier procurement agreements and in the said Memorandum of Understanding, there is no mention that the petitioner is not liable for the quality and defects of the goods. It has been further urged that in winding up petition, the jurisdiction of this Court is very limited and the Court is not entitled to examine and/ or to adjudicate as to whether the petitioner is financier or seller or whether there is novation or rescission of the procurement agreements by virtue of memorandum of understanding dated 21/11/2011. Similarly, it has be....
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....affidavit, deserves to be dismissed. It has been further urged that the power of attorney does not authorise Mr. Ota to file the petition singly but authorises him to act collectively and along with two other individuals. Lastly, it has been urged that there is bonafide dispute as to the liability of the respondent under four procurement agreements and also under consultancy agreements which are interconnected with the procurement agreements. Without prejudice to the contentions of the respondent, it was submitted that the respondent was ready and willing to furnish bank guarantees for liability amount of USD 252,000/- and in respect of overdue interest of JPY 1,398,933/-, if direction is given by the Court. 19. Since the objection regarding authorisation in favour of Mr. Ota was not valid and as such the petition filed was not maintainable, was taken at the fag end of the argument which was opposed by Mr. Kantak on the ground that such a ground was not taken in reply, while reserving the petition for order, this Court granted leave to the petitioner to file fresh power of attorney along with brief written submissions. Against the said order, respondent preferred Company Appeal ....
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.... the respondent to oppose the production of fresh power of attorney by filing written arguments in that behalf with further liberty to the petitioner to file rejoinder to such arguments which have been filed. 25. It is the case of the petitioner that no prejudice has been caused to the respondent by production of new duly stamped power of attorney. The petitioner placed reliance upon the judgment of the Apex Court in the case of Hindustan Steel Ltd. (supra) in which it has been stated that the Stamp Act is a fiscal measure enacted to secure revenue for State on certain classes of instruments and it is not enacted to arm the litigant with a weapon of technicality to meet the case of the opponent. In the case of Mahesh Nathani (supra), learned Single Judge of Allahabad High Court permitted the petitioner to file fresh power of attorney in accordance with Indian law ratifying the earlier attorney. In the case of Western India Theatres Ltd. (supra), the Division Bench of this Court held that if the winding up petition was not properly signed by the petitioner, it was a mere irregularity which could be cured at any time. Learned Division Bench placed reliance upon the ratio of the....
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....on, the submission made on behalf of the respondent has absolutely no merit, having regard to the fact that specific plea was not taken by the respondent in any of the affidavits filed on its behalf regarding the invalidity of power of attorney in favour Mr. Ota and it was only at the fag end of argument, such a contention was raised on behalf of the respondent. Therefore, in my view, the objection taken by the respondent, has absolutely no merit. Reliance placed on behalf of the respondent on the judgment in the cases of P. Laxmidevi and Avinashkumar Chauhan (supra) is in relation to the provisions of Indian Stamp Act and as such, is of no avail to the respondent. 27. Reliance has been also placed by learned Counsel on behalf of the respondent on the judgments in cases of Tayal Potteries and another rendered by learned Single Judge of Allahabad High Court, Mool Chand Wahi of Division Bench of Punjab and Haryana High Court and learned Single Judge of this Court in the case of Shantilal Khushaldas and Brothers Pvt. Ltd. (supra). The ratio of the judgment would not advance the case of the respondent inasmuch as in all these cases, the affidavits in support of the petition were not....
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....eements dated 31/03/2008 are concerned, the only ground urged on behalf of the respondent is that these two agreements are interconnected with four procurement agreements. Moreover, the respondent agreed to furnish bank guarantees in respect of the amounts due in terms of consultancy fee agreements subject to production of invoices by the petitioner. 31. In the case of Vijay Industries (supra), the Apex Court held that if the principal amount is admitted and there is dispute as to existence of agreement for payment of interest or the rate of interest, the same would not result in dismissal of winding up petition. In the said case the Apex Court held that on the date of filing of winding up petition, dues in respect of the part of the debt which were more than the amount of Rs. 1 Lakh specified in Section 434(1)(a) of the Act were not denied and, therefore, the Division Bench of the High Court was not entitled to dismiss the winding up petition on the basis that entire debt, covering both principal and interest must be undisputed. The Apex Court held that for invoking the provisions of Section 433(b) read with Section 434 of the Act in relation to winding up of a Company on the g....