Bombay High Court
Poona Tools Private Limited vs Posco-India Pune Procesing Centre ... on 2 April, 2018
Author: G.S.Kulkarni
Bench: Naresh H. Patil, G.S.Kulkarni
pvr 1/20 appl134-18grp.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (Lodg)NO.134 OF 2018
IN
COMPANY PETITION NO.656 OF 2013
M/s.Rojee-Tasha Stampings Private Ltd. ...Appellant
Versus
1.POSCO-India Pune Processing Centre Pvt.Ltd.
2. Official Liquidator, High Court, Bombay. ...Respondents
AND
APPEAL (Lodg)NO.135 OF 2018
IN
COMPANY PETITION NO.98 OF 2014
M/s.Automotive Metal Stampings Pvt.Ltd. ...Appellant
Versus
1.POSCO-India Pune Processing Centre Pvt.Ltd.
2. Official Liquidator, High Court, Bombay. ...Respondents
AND
APPEAL (Lodg)NO.136 OF 2018
IN
COMPANY PETITION NO.99 OF 2014
M/s.Ganage Pressings Pvt. Ltd. ...Appellant
Versus
1.POSCO-India Pune Processing Centre Pvt.Ltd.
2. Official Liquidator, High Court, Bombay. ...Respondents
AND
APPEAL (Lodg)NO.137 OF 2018
IN
COMPANY PETITION NO.97 OF 2014
M/s.Poona Tools Pvt.Ltd. ...Appellant
Versus
1.POSCO-India Pune Processing Centre Pvt.Ltd.
2. Official Liquidator, High Court, Bombay. ...Respondents
----
::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 :::
pvr 2/20 appl134-18grp.doc
Mr.V.P.Sawant with Mr.Nikhil Patil & Mr.Prabhakar Jadhav i/b.
Mr.Prabhakar Jadhav, for the Applicants/Appellants.
Mr.Shyam Kapadia with Mr.Darshan Mehta & Ms.Krithika Anand i/b.
Dhruve Liladhar & Co., for the Respondents.
......
CORAM : NARESH H. PATIL AND
G.S.KULKARNI, JJ.
RESERVED ON: MARCH 21, 2018
PRONOUNCED ON : APRIL 2, 2018
---
JUDGMENT:(Per G.S.Kulkarni, J.)
1. These appeals arise out of a common order dated 11 January 2018 passed by the learned Single Judge whereby the appellant-companies are ordered to be wound up with a consequent direction appointing the Official Liquidator, High Court, Bombay as a Liquidator of the appellant-companies, with all powers under the Companies Act,1956.
2. For convenience the four appellants are referred to as the 'Company'. The respondent is engaged in the business of supply of steel products was approached by the company with an offer to purchase the respondents' products. The parties entered into multiple ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 3/20 appl134-18grp.doc sales contracts cum confirmations. Accordingly, the respondents sold, supplied and delivered goods to the company and raised various invoices. The respondents had issued twenty one invoices to the Company M/s.Rojee-Tasha Stampings Pvt. Ltd. for a total amount of Rs.1,52,29,090.56. The company had made an on account payment of a meager amount of Rs.7,86,539.60, leaving outstanding of RS.1,44,42,550.90. There were similar transactions with the other Companies. Correspondence ensued between the parties, however the company did not make payment of the outstanding amounts. There were different amounts which were due and payable by the other group of companies. A statutory notice dated 26 April 2013 was addressed by the respondents to the Company, which was not replied. Consequently, the respondents filed the four company petitions in question under Sections 433(3), 434 and 439 of the Companies Act against the Companies seeking winding up of the companies. The learned Company Judge passed a common order dated 25 June 2014 being a consent order whereby the Company agreed to discharge its liability towards the respondent in installments. The said order which is a self operative order reads thus:-
::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 :::
pvr 4/20 appl134-18grp.doc "Heard the Learned Advocates appearing for the Parties and the following order is passed by consent :
i. The Respondent Company has agreed to pay to the Petitioner an amount of Rs. 6.07 Crores in full and final settlement of the claims of the Petitioner in the above four Company Petitions in 18 instalments starting from 30th July, 2014 as under :
Sr. Date Amount
Nos.
1 30th July, 2014 10,00,000
2 10th August, 2014 33,72,222
3 10th September, 2014 33,72,222
4 10th October, 2014 33,72,222
5 10th November, 2014 33,72,222
6 10th December, 2014 33,72,222
7 10th January, 2015 33,72,222
8 10th February, 2015 33,72,222
9 10th March, 2015 33,72,222
10 10th April, 2015 33,72,222
11 10th May, 2015 33,72,222
12 10th June, 2015 33,72,222
13 10th July, 2015 33,72,222
14 10th August, 2015 33,72,222
15 10th September, 2015 33,72,222
16 10th October, 2015 33,72,222
17 10th November, 2015 33,72,222
18 10th December, 2015 57,44,444
Total 6,07,00,000
iii. In the event of the Respondent Company failing to
pay any of the above instalment, the Company Petitions shall revive without Nitin 3 906-CP-97-2014 reference to this Court, stand admitted, made returnable ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 5/20 appl134-18grp.doc within six weeks from the date of default and advertised in two local newspapers i.e. Free Press Journal (in English) and Navshakti (in Marathi) and in the Maharashtra Government Gazette. The Petitioner shall deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master of this Court towards publication charges, within two weeks from the date of default, with intimation to the Company Registrar failing which the Petitions shall stand dismissed for non-prosecution.
iv. In the event of any default the Official Liquidator shall forthwith stand appointed as Provisional Liquidator of the Company. He shall immediately take charge of the books, records as well as the movable and immovable properties of the Company.
v. In the event of default and consequent Admission of the Company Petitions, Notice under Rule 28 of the Companies (Court) Rules, 1959 shall also stand waived on behalf of the Company.
vi. The above Company Petitions are accordingly disposed of."
3. The company defaulted in making payment of the installments and consequent to the self operative order dated 25 June 2014, the company petitions came to be admitted and were advertised. On behalf of the respondent, an affidavit of Mr.Ravindra Bhiku Rikame dated 19 January 2016 came to be placed on record of the company petitions, confirming the advertisement of admission of the petition in the newspapers dated 15 January 2015 and also in the Maharashtra Government Gazette dated 5 March 2015 - 11 March 2015 at Sr.No.660. The company also placed on record an affidavit of Jin ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 6/20 appl134-18grp.doc Deok Park dated 12 February 2015 interalia stating that the company had defaulted on the amounts payable under the said consent order and out of the amount of Rs.6,07,00,000/- agreed to be paid as per the schedule as recorded in the consent order only an amount of Rs.12 lakhs was paid.
4. The company Court thereafter took up the company petitions for hearing. The company filed an additional affidavit of Mr.Rohit R. Ganage dated 15 September 2015 opposing the petitions interalia introducing a new case namely that the company petitions were not maintainable, for the reason that the respondent had received the amounts due and payable by the company from its insurers "KSure-Korea". It was stated that this fact was suppressed by the respondent who was attempting to unjustly enrich itself by making claims against the company. It was contended that in view of the payment received from the insurance company, there was no longer a debt outstanding from the company and the respondent was not a creditor of the company. It was thus contended that the winding up petitions at the instance of the respondent would not be maintainable, as the respondent ceased to be a creditor within the meaning of ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 7/20 appl134-18grp.doc Section 433 and 434 of the Companies Act. It was stated that this fact had went unnoticed when the consent order dated 25 June 2014 was passed by the Court. It was thus the case of the company that it be released from the statements and undertaking as made to the Court and recorded in the consent order dated 25 June 2014.
5. The learned Company Judge having considered the rival pleas held that the said defence of the company was not acceptable as the company was a third party and could not have taken a defence that the amounts subject matter of the debt of the company has already been paid by the respondents' insurer and consequently avoid making payment on that ground. Considering the legal position on this issue, the learned Company Judge observed that even if the respondent has received payment from the insurance company, the respondent was still entitled to proceed against the company. The learned Single Judge disbelieved the subsequent affidavit dated 15 September 2015 filed by one of the Directors of the company Mr.Rohit R.Ganage, to contend that the company was not aware of the respondent's insurer making payment to the respondent. Moreover, taking into consideration the material on record the learned Company Judge has observed that the ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 8/20 appl134-18grp.doc company has in fact made a false statement in the said affidavit that the company came to know only in July/August 2015 of the respondent having received the payment from the insurance company. This for the reason that this was being urged on the basis of an E-mail dated 14 June 2012 (page 96 of the paper book) from Ksure to the company which was very much in existence and available with the company when the company Court passed an order dated 25 June 2014. The learned Single Judge accordingly ordered that the company be wound up. The company being aggrieved by the impugned order is before the Court in the present appeals.
6. Learned Counsel for the appellant/company in assailing the impugned order has made the following submissions:-
(i) There should have been a disclosure by the respondent of the receipt of the amounts from the insurer-Ksure. This to ascertain whether the insurer was assigned the rights in respect of the debt of the company towards the respondent and/or to ascertain whether the insurer subrogates the rights of the respondent to the debt in question.
(ii) As the respondents had received the entire amount from the insurance company, there was no longer a debt outstanding from the ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 9/20 appl134-18grp.doc company as also the respondent ceased to be creditors of the company within the meaning of Section 433 and 434 of the Companies Act.
(iii) The observations of the learned Company Judge that the Company has filed a false affidavit when it contended that it had recently received the knowledge of the payment made by the insurer to the respondents-companies, is an error inasmuch as the affidavit was filed by the Mr.Rohit R. Ganage who was a new Director.
7. In supporting the submission that the respondent having received the amounts as outstanding from the company, from its insurer and thus there was no debt due and payable by the company to the respondents, the learned Counsel for the respondents has placed reliance on the decisions in the case "Union of India Vs. Sri Sarada Mills Ltd."1; Economic Transport Organization, Delhi Vs. Charan Spinning Mills Pvt.Ltd. & Anr."2.
8. On the other hand, the learned Counsel for the respondents in supporting the impugned order would submit that despite the payment being made by the insurer, the respondent's cause of action against the company would very well survive considering the 1 AIR 1973 SC 281 2 (2010)4 SCC 114 ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 10/20 appl134-18grp.doc settled position in law, that such a contention as urged on behalf of the company cannot be a defence as it would be the subject matter of separate proceedings between the insurer and the respondent. It is submitted that the company being a third party cannot take such a defence so as to disown its liability. It is next submitted that the learned Single Judge has correctly observed that the affidavit of Mr.Rohit R. Ganage dated 15 September 2015 interalia stating that it had recently come to the notice of the Directors of the Company that the amount having received from the insurer, there was no debt due and payable by the company to the respondent, was ex-facie a false statement. It is submitted that this plea was completely falsified by E- mail dated 14 June 2012 addressed by Ksure to the Companies. It is submitted that the defence of the appellant company was not bonafide and honest. In any case, the receipt of the amount from the company would not vitiate the cause of action which had accrued to the respondent.
9. We have heard the learned Counsel for the parties. We have also perused the impugned order and the record. ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 :::
pvr 11/20 appl134-18grp.doc
10. It is not in dispute that under the purchase transaction between the company and the respondent, the company was liable to pay an amount of Rs.6,07,00,000/- to the respondent. What is significant is that in the consent order dated 25 June 2014 passed by the learned Company Judge the appellant-company(s) had admitted this liability, whereby the company had agreed to a detailed schedule of payments to be made to the respondents from 30 July 2014 to 10 December 2015. Admittedly, the said order of the Company Court was a self operative order inasmuch as the company failing to pay any of the installment, it was directed that the company petitions shall stand revived and without reference to the Court would stand admitted to be made returnable after six weeks, from the date of default and advertised in local newspapers. The Company petitions were accordingly advertised and thereafter were taken up for final hearing and decided by the impugned order. It is thus clear that there is no dispute that there was a debt due and payable by the company towards the respondents. The only defence of the company as introduced in the affidavit of Mr.Rohit R. Ganage dated 15 September 2015 is that the company had recently become aware that the respondents had duly received the outstanding payments qua the ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 12/20 appl134-18grp.doc transaction between the company and the respondent from its insurer- Ksure and having received the amounts which were due and payable by the company, there was no longer a debt outstanding from the company to the respondent. It is the contention of the Company that the insurance company thus was a necessary party. It is also the Company's case that the respondent has suppressed the agreement between the respondent and its insurer-Ksure, which was not placed on record. It is submitted that the contract between the respondents and the insurer was required to be considered by the Company Court, so as to ascertain whether the debt outstanding from the company was assigned by the respondent in favour of the insurer and/or the insurer subrogates the company qua the said debt. The submission is also that at the most the insurer of the respondent would be entitled to make a claim against the company and not the respondent.
11. We are surely not persuaded to accept the above pleas of the company. This for the more than one reason. We cannot lose sight of the fact that the company in the company petition's in question had agreed to a consensual order dated 25 June 2014 passed by the Company Judge agreeing to discharge his liability and make full and ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 13/20 appl134-18grp.doc final payment of Rs.6,07,00,000/- in eighteen installments starting from 30 July 2013 till 10 July 2016 as set out in the chart at page 2 of the said order passed by the Company Court. Further in the event of default and failure to pay any installment, it was agreed and the Court had directed that the company petitions shall stand revived and the petitions would stand admitted. The company defaulted in payment of the installments. The company also did not move any formal application by making any substantive prayer for recall of the said orders dated 24 June 2014 except incorporating a statement in paragraph 9 of the affidavit of Rohit R. Ganage dated 15 September 2015 stating that as the respondent had received an amount of Rs.6,07,00,000/- from its insurers, the order dated 25 June 2014 passed by the company Court be recalled.
12. Be that as it may, it would be imperative to consider whether such a plea that the debt of the company payable to the respondent ceased to exist on the respondent's insurer making payment to the respondent, can at all be accepted. Admittedly, the company is a unknown entity to the contract of insurance between the respondent and its insurer Ksure. Being a third party the company ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 14/20 appl134-18grp.doc cannot take shelter and disown its liability of a debt payable to the respondent on the basis of an insurance transaction which has taken place between the respondent and its insurer. In our opinion, such a plea introduced in the affidavit of Mr.Rohit R. Ganage is an argument of desperation. Being a third party, the company is not entitled to take a defence that the respondent being paid by the insurer, the liability of the company would ceased to exist, as the insurance contract between the respondent and its insurer is a matter inter-se between the said two parties. It is for the insurer depending upon the terms and conditions of the contract between the respondent and the insurer, to consider its position and recover any amount, if so is received by the respondent under the transaction in question. The company stands completely outside the insurance contract between the respondent and its insurer. In our opinion, the Company cannot espouse the cause of the insurer in making an argument that the respondent is unjustly enriched. In our opinion, the principle of law in this regard can very well be seen from the decisions in "Morley Vs. Moore"3 and "Yorkshire Insurance Vs. Nisbet Shipping Co.Ltd." 4 as referred in the impugned order. We are also in agreement with the view taken by the 3 1936(2) KB 359 4 (1962)2 Q.B.330 ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 15/20 appl134-18grp.doc Divison Bench of the Gujarat High Court in the case PVD Plast Mould Industries Ltd. Vs. ING BHF Bank Aktiengesellschaft 5 wherein the Court observed that "The petitioner cannot say that once the insurance company has paid the money to the principal creditor, then the appellant company is not answerable to anybody. The appellant company is still liable and applying the principle of subrogation, the insurance company can always recover the money from the appellant and in any case, if the money is received by the creditor company then, to the extent of the receipts, the creditor company would refund the money to the insurance company. That would be a matter between the insurance company and the creditor company. The debtor is not entitled to take any benefits out of the said transaction."
13. We are also in agreement with the view taken by the learned Single Judge of this Court in Jiangsu Skyrun Waxi Co.Ltd. VS. Syrma Technology Pvt.Ltd.6 wherein the learned Single Judge referring to the decision as we have noted above, observed thus:-
"18. ... ... ... ....
In light of the judgments referred to above, the submission of the Company In light of the judgments referred to above, the submission of the Company that, in view of the 5 2008(144) Company Cases 484 Gujarat 6 Company Petition no.294 of 2014, order dt.22.12.2014 ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 16/20 appl134-18grp.doc phraseology of the payment receipt-cum-subrogation letter which includes the words "assign" and "transfer", only the insurer can initiate and maintain any action against the Company cannot be accepted. The Petitioner is indeed entitled to file the above Company Petition against the Company and the Petition as filed is maintainable in law. The only obligation that falls upon the Petitioner is in respect of receipt of sums from the Respondent which may be in excess of the Petitioner's claim, to which extent the insurance company would be entitled to seek recovery of such sums from the Petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and Petitioner and does not merit any further consideration at the stage of admission of this present Company Petition.
19. The Company's following submission was that the claim under the Petition was not a 'debt' but 'damages' and there was no ascertained liability. Therefore, it was submitted, the claim of the Petitioner can only be proved in a Civil Court. In my view, there is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, there is no dispute in respect of the admitted outstanding of US$ 226,283.40 payable by the Respondent. Therefore, the present Company Petition, which is in respect of an admitted debt and an ascertained liability is unaffected by the judgments relied upon by the Company which relate to the non- maintainability of a winding up petition in cases where there is an unascertained sum payable to the Petitioner."
14. The reliance of the Company, on the decision of the Supreme Court in Union of India Vs. Sri Sarada Mills Ltd. (supra) is not well founded. The dispute in the said case arose from a suit instituted by the plaintiff - Sri Sarada Mills Ltd., against the Union of India/Railways for damages to 100 bales of F. P. cotton consigned through their agents from Nagpur to Podhanur under a railway receipt ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 17/20 appl134-18grp.doc issued by the Central Railway. When the goods had arrived at Podhanur, it was found that 87 bales out of the 100 were burnt and charred and 13 bales were loose and short in weight. When the plaintiff applied for open delivery, the railway authorities at Podhanur got the damage surveyed, and issued a certificate of damage and shortage. The plaintiff claimed damages. The railways however denied the claim as the cause of the fire was stated to be unknown and thus no negligence or misconduct could be claimed against the railways. The plaintiff had accordingly instituted a suit for damages. It is in the said suit the defendants-railways contended that the plaintiff was not entitled to institute the suit as it had insured the goods with the Indian Globe Insurance Co. and had received the total loss from the said Company, and therefore, the railways was not liable for damages. In the majority judgment, the Court refused to accept the said contention and made the following observation:-
"21. The defence of the Railway Administration was that the mill realised from the insurance company the damages and "as such the plaintiff (meaning thereby the respondent mill) has no right to claim any sum in this action". If the specific plea of assignment had been taken in the written statement the respondent mill would have impleaded the insurance company. The Court could 'have in those circumstances been in a position to afford full and complete relief to the parties.
22. In the present case the insurance company and the mill proceeded on the basis that the, insurance company ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 18/20 appl134-18grp.doc was only subrogated to the rights of the assured. The letter of subrogation contains intrinsic evidence that the respondent would give the insurance company facilities for enforcing rights. The insurance company has chosen to allow the mill to sue. The cause of action of the mill against the Railway Administration did not perish on giving the letter of subrogation.
15. In Economic Transport Organization, Delhi Vs. Charan Spinning Mills Pvt. Ltd. & Anr.(supra) as relied on behalf of the appellant, the issue which fell for consideration of the Constitution Bench was on a reference as made by a three Judges' Bench on the issue that the decision of the Supreme Court in Oberai Forwarding Agency V. New India Assurance Co.Ltd7 whether required reconsideration. The question which fell for consideration of the Supreme Court in the said decision are paraphrased in paragraph 11 of the decision which pertained to the issue of a letter of subrogation executed by an assured in favour of the insurer. One of the questions namely question (b) was where the insurer pays the amount of loss to the assured, whether the insurer as subrogee, can lodge a complaint under the Act, either in the name of the assured, or in the joint names of the insurer and the assured as co-complainants?. In answering the said issue, the Court laid down the principles of subrogation in 7 (2000)2 SCC 407 ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 19/20 appl134-18grp.doc paragraph 35 of the decision and answered the questions so framed in paragraph 51 of the decision. It was held that if there is subrogation in favour of the insurer, the insurer as subrogee can file a complaint under the Consumer Protection Act either in the name of the assured as his attorney-holder or in the joint names of the assured and the insurer, for recovery of the amount due from the service provider. It was held that the insurer cannot in its own name maintain a complaint before a Consumer Forum under the Act, even if its right is traced to the terms of a letter of subrogation-cum-assignment executed by the assured. The observations of the Court in paragraph 51 needs to be noted which read thus:-
"51. We therefore answer the questions raised as follows:
(a) The insurer, as subrogee, can file a complaint under the Act either in the name of the assured (as his attorney holder) or in the joint names of the assured and the insurer for recovery of the amount due from the service provider.
The insurer may also request the assured to sue the wrong doer (service provider).
(b) Even if the letter of subrogation executed by the assured in favour of the insurer contains in addition to the words of subrogation, any words of assignment, the complaint would be maintainable so long as the complaint is in the name of the assured and insurer figures in the complaint only as an attorney holder or subrogee of the assured.
(c) The insurer cannot in its own name maintain a complaint before a consumer forum under the Act, even if its right is traced to the terms of a Letter of subrogation- cum-assignment executed by the assured.
(d) Oberai is not good law insofar as it construes a Letter of subrogation-cum-assignment, as a pure and simple ::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 ::: pvr 20/20 appl134-18grp.doc assignment. But to the extent it holds that an insurer alone cannot file a complaint under the Act, the decision is correct." (emphasis supplied)
16. Considering the above position in law on subrogation, in our opinion, the above decision is of no avail to the appellants as the issue in the present case does not arise from any adjudication on subrogation or assignment by the learned Single Judge. In any event, even assuming that there was a subrogation applying the principles of law as laid down by the Constitution Bench in Economic Transport Organization, Delhi Vs. Charan Spinning Mills Pvt. Ltd. & Anr. (supra), it needs to be held that the company petitions at the behest of the respondent were nevertheless maintainable.
17. In the light of the above discussion, we find no merit in the appeals. They are accordingly rejected. No costs.
(G.S.KULKARNI, J.) (NARESH H. PATIL, J.)
::: Uploaded on - 02/04/2018 ::: Downloaded on - 03/04/2018 02:12:59 :::