Punjab-Haryana High Court
Pavan Om Parkash Kejriwal vs Partap Steel Rolling Mills (1935) Ltd. on 5 August, 1992
Equivalent citations: [1994]81COMPCAS916(P&H), (1992)102PLR640
JUDGMENT G.R. Majithia, J.
1. This appeal is directed against the order of the learned company judge refusing to advertise the petition (C. P. No. 18 of 1990) filed by the appellant under Sections 433 and 434 read with Section 439 of the Companies Act, 1956 (for short "the Act").
2. The facts :
The appellant used to supply iron scrap to the respondent-company at different intervals and the payments by the respondent-company to the appellant were reflected in the account books of the parties. As per the statement of account supplied by the respondent-company to the appellant for the period from April 1, 1988, to March 31, 1989, a balance of Rs. 2,88,366.89 stood outstanding against it on March 31, 1989. Since a sum of Rs. 1,50,000 was paid to the appellant in May, 1989, out of the balance amount and a sum of Rs. 14,728.81 was further adjusted against the amount of Laxmi Tubes and Engineering Co., Bombay, the amount still due to the appellant from the respondent-company comes to Rs. 1,23,638.08.
Since the respondent-company did not pay the amount to the appellant, statutory notice under Section 434 of the Act was served by the appellant upon the respondent-company. Non-payment of the amount due led to the filing of the company petition.
3. In the written statement, the respondent-company took the following defence :
"The petitioner approached the respondent-company with an offer to procure and arrange the transfer of import licences in respect of imported scrap. The petitioner offered to act as a broker and the respondent-company agreed to pay necessary brokerage charges for lawful transfer of these licences. It may be stated that the import of licences in respect of iron scrap is regulated by the Import and Export Policy which is formulated by the Ministry of Commerce, Government of India. It was the duty of the petitioner to comply with all the formalities requisite for legal and valid transfer of the import licences before the same could be endorsed in favour of the respondent-company, thereafter, it was for the petitioner to procure the release advice, i.e., customs clearance and thereby to enable the respondent to import the goods. Admittedly, the petitioner could not get the necessary endorsement of the release advice in respect of the licences, the total value of which was Rs. 5,40,823. Had these licences been duly endorsed and the release advices procured by the petitioner, the petitioner would have been entitled to a sum of Rs. 1,56,839 being brokerage charges. Since the respondent-company was having regular dealings with the petitioner, the respondent-company in good faith had remitted a sum of Rs. 1,56,839 in advance to the petitioner on March 7, 1989. However, when the petitioner failed to get the legal and valid transfer of the import licences in favour of the respondent-company, the entry of Rs. 1,56,839 was reversed on December 30, 1989. A debit note dated December 30, 1989, for Rs. 1,56,839 was sent by the respondent to the petitioner on December 31, 1989. Taking into consideration up to date the running account between the parties, the petitioner owes a sum of Rs. 41,236.50 to the respondent-company."
4. On the basis of the material placed before him, the learned company judge held that the debt was bona fide disputed by the respondent company and the defence could not be categorised as unsubstantial. He, thus, refused to proceed with the company petition.
5. We have heard learned counsel for the parties. Learned counsel for the appellant submitted that a sum of Rs. 1,56,839 allegedly remitted by the respondent-company was not remitted to the appellant. The submission is devoid of any merit. The appellant was to procure and arrange the transfer of import licences in respect of the imported iron scrap and he was to be paid the brokerage charges for lawful transfer of these import licences. The appellant was to procure the release advice, i.e., customs clearance to enable the respondent-company to import goods. The appellant could not get the necessary endorsement of the release advice in respect of the licences of the value of Rs. 5,40,823. If these licences had been duly endorsed and the release advices procured by the appellant, the appellant would have been entitled to a sum of Rs. 1,56,839 as brokerage charges. The respondent-company in good faith advanced a sum of Rs. 1,56,839 on March 7, 1989. The appellant failed to get the legal and valid transfer of the import licences in favour of the respondent-company. So, the respondent-company reversed the entry of Rs. 1,56,839 on December 30, 1989, and on the following day sent the debit note dated December 30, 1989, for the said amount to the appellant. The receipt of the debit note dated December 30, 1989, sent by the respondent-company to the appellant on December 31, 1989, was not disputed in the rejoinder filed by the appellant. On the admitted facts, we are satisfied that the debt is bona fide disputed by the respondent and it cannot be said that the respondent-company is unable to pay the debt.
6. We find no ground to interfere with the order of the learned company judge. However, it will meet the ends of justice if the respondent-company is directed to furnish security of immovable property in the sum of Rs. 1,23,638.08 to the satisfaction of the Registrar General of this court within three* months so that in the event of appellant's succeeding in establishing his claim in the civil court he can recover the amount due to him through the sale proceeds of the property. The appellant has already been relegated to his ordinary remedy of civil suit for the recovery of the amount claimed in the petition under Sections 433, 434 and 439 of the Act. However, it is made clear that the appellant will be entitled to claim the benefit of Section 14 of the Limitation Act for the period during which the petition was pending in this court.
7. For the reasons aforesaid, the appeal is dismissed, but with no order as to costs.