Calcutta High Court
Re : Spotlight Tradecom Private Limited vs L & T Finance Limited on 27 January, 2014
Author: Nadira Patherya
Bench: Nadira Patherya
ORDER SHEET
CP 506/2013
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
ORIGINAL SIDE
RE : SPOTLIGHT TRADECOM PRIVATE LIMITED
-AND-
L & T FINANCE LIMITED
BEFORE:
The Hon'ble JUSTICE NADIRA PATHERYA
Date : 27th January, 2014.
Mr. R. Banerjee, Adv., with Mr. P. Sinha, Adv.
Ms. M. Bhutoria, Adv.
Mr. S. Choudhury, Adv.
Mr. D. Ghosh, Adv., ..for petitioner.
The Court : This application for winding up has been filed after service of statutory notice under section 434 on the company. No reply has been given to the statutory notice.
In fact, the claim is based on advance made to the company by the petitioning creditor of Rs.1,95,20,000/- for purchase of certain equipments. The agreement between the parties postulated that payments be made by instalments month by month. There is no dispute with regard to payment of the first and second instalment, so also part of the third instalment. Thereafter the company defaulted in making payment on and from part of the fourth instalment and the petitioning creditor, left with no alternative, was compelled to issue a termination notice. But such termination notice is of no relevance today as the statutory notice has been issued wherein a demand for payment has been made of sums. 2
The company has not disputed the said claim. Even after filing of the winding up application, service was sought to be effected on the company and directions were also sought to be communicated. The first service has returned with the endorsement "addressee absent, intimation served, addressee moved". Prior thereto, service was attempted and such service returned as will appear from the postal record that "delivery attempted, addressee absent, intimation served, unclaimed". This, therefore, tantamounts to good service. The company has filed no affidavit in opposition and therefore the claim of the petitioning creditor is undisputed.
In cases where the claim remains undisputed, a petition of this kind will lie as the arbitration clause contemplates a dispute. But here, in the absence of a dispute either by way of reply to the statutory notice or to the petition filed, it cannot be said that there exists a dispute which requires adjudication by arbitration. Therefore the company petition stands admitted for a sum of Rs.1,87,32,340/- along with interest calculated at 8% per annum on and from the date of issuance of the statutory notice till realisation.
Although the petitioning creditor has claimed sums on account of delayed payment charge so also cheque returning and other charges, the same have not been considered in this petition and it will be open to the petitioning creditor to seek remedies for the said sums in an appropriate forum.
An opportunity is being given to the company to make payment of the sum for which the company petition has been admitted in eight equal monthly instalments. The first of such instalments be paid by February 14, 2014 and thereafter the 14th day of each succeeding month. In default of payment of the first instalment, the petitioning creditor will be 3 entitled to advertise once in the Bartaman and once in The Times of India, Kolkata Edition.
The matter is made returnable six weeks hence. All parties concerned are to act on a signed photocopy of the order on the usual undertakings.
(NADIRA PATHERYA, J.) tk