Bombay High Court
Clicquot Asia Limited vs Red Robin International Ltd. on 24 February, 2005
Equivalent citations: 2005(3)BOMCR61, [2005]126COMPCAS51(BOM), (2005)5COMPLJ201(BOM), [2005]61SCL240(BOM)
JUDGMENT S.U. Kamdar, J.
1. The present company petition is filed under Sections 433 and 434 of the Companies Act, 1956. The claim of the petitioner is in the sum of 220,273 Euros arising out of supply of wines and champagne to the respondent company.
2. Some of the material facts of the present case are as under :
3. The petitioner is a foreign company and is inter alia engaged in manufacturing of different kinds of wine and champagne. The respondent is an Indian company and is inter alia carrying on business in distribution and sale of wine and champagne under an agreement dated 6.10.2001 entered into by and between R.R. International which is a division of the respondent company and the petitioner. It was agreed that M/s. R.R. International shall be appointed as the exclusive distributor for distribution of Veuve Clicquot Ponsardin & Krug Champagne and other wines from the Clicquot Asia portfolio on various terms and conditions as set out in the said agreement.
4. The said arrangement was arrived at in 2001 and pursuant thereto the petitioner supplied wine from time to time including through Clicquot Hongkong Limited who was wholly owned subsidiary of the petitioner herein. Invoices were raised by the said company and the respondent made payments from tome to time. It is the case of the petitioner that in respect of one such invoices bearing No. OA/12-20/01B dated 20.12.2001 for the sum of Rs. 236,751.33 Euros raised by the said Cliquot Hong Kong Limited, the respondent company failed to make payment though the goods were duly supplied. It is the case of the petitioner that in respect of the said supply, the necessary invoice was raised and even bill of exchange was accepted by the respondent company being dated 2.1.2002. The said bill of exchange was drawn by Clicquot Hongkong Limited for the sum of 236,751.33 Euros. The said goods were duly supply and duly received by the respondent company. On 3.6.2002, the petitioner made a request to the respondent company to make payment of the amount which was according to the petitioner due and payable in the sum of 347,560 Euros. On 29.11.2002 a debit note was issued and the balance amount claimed was 220,273 Euros against the said invoice. Thus, according to the petitioner, the ultimate amount due and outstanding was 220,273 Euros. In view of the fact that the company did not make payment, the petitioner issued a notice under section 433 and 434 of the Companies Act, 1956 calling upon the respondent company to make payment of the aforesaid amount. This notice dated 10.3.2003 was issued for and on behalf of M/s. Clicquot Asia Limited and Clicquot Hong Kong Limited both and was addressed to the respondent company. In the said notice it has been pointed out that under the terms and conditions of the agreement, the wine was supplied to them from time to time but in respect of one of the invoices the payment is not received. However, the company did not reply to the said statutory notice.
5. There are certain additional facts which are relevant for the purpose of the present petition which are briefly enumerated as under:-
6. The said exclusive distributorship agreement dated 6.10.2001 was for a period upto 31.12.2003 and the same has expired by efflux of time. However, it is the case of the respondent company that it was orally agreed by and between the petitioner and the respondent company that the association of the respondent will continue on long term basis and keeping the said fact in mind, the said agreement shall be renewed. However, it is the further case of the respondent company that suddenly the petitioner stopped supply of the said goods to the respondent and started effecting supply of the said product to other persons in India in direct breach and violation of the said exclusive distributorship agreement. According to the respondent company, the said act on the part of the petitioner has resulted in serious loss and that includes the loss of reputation and good will of about Rs. 2.50 crores and opportunity and business and other losses of Rs. 5 crores. Therefore, according to the respondent company, it is the petitioner who has to make huge amount of payment to the respondent company and the said amount which was due and payable under the said invoice of 220,273.09 was in fact required to be adjusted against the claim of compensation of the respondent company against the petitioner.
7. In view of the aforesaid issues,the present company petition was filed after giving statutory notice on 24.7.2003 under section 433 and 434 of the Companies Act, 1956 seeking to wind up the respondent company on the ground that it is unable to pay its debt.
8. I have heard the parties at considerable length. Before me there is no dispute that the goods which are subject matter of the said notice had been supplied and delivered by the petitioner to the respondent company. It is also not in dispute that the price of the said goods amounting to 220,273 Euros has not been paid by the respondent company to the petitioner herein. Thus, on merits substantial liability to make payment has been accepted by the respondent company. However, what is contended by the learned counsel for the respondent company is that they are entitled to adjustment and/or set off against the so called claim of compensation and/or breach of agreement. It is well settled that the claim of compensation for damages has to be proved and till the same is proved, the amount cannot be treated as crystalised and/or payable by the petitioner to the respondent company. Today there is not even a suit filed in respect of the said claim. Only an averment is made in the affidavit in reply that they are intending to initiate proceedings against the petitioner. I am not inclined to accept the said contention. Firstly, because admittedly by efflux of time, the agreement expired in the year 2003. It is only on the basis of oral arrangement that the said claim is raised for the breach of the said agreement. Apart therefrom, the claim is totally vague particularly because the same is raised merely for the sake of raising. I am of the opinion that the claim of the petitioner cannot be defeated on the ground that the respondent company is purportedly entitled to file a suit for claiming damages more particularly when in respect of the said amount which is due and payable, there is no substantial dispute raised by the respondent company on merits of the claim.
9. However, Mr. Kapadia, the learned counsel appearing for the respondent company has raised two legal issues and contended that the present company petition is not maintainable and, therefore, the present company petition should be dismissed. The first contention raised by the learned counsel for the respondent company is that admittedly under the deed of assignment dated 1.4.2003 entered into by Clicquot Hong Kong Limited with Clicquot Asia Limited, the assets and the liabilities of Clicquot Hongkong Limited has been taken over by Clicquot Asia Limited and, therefore, the present petition which has ben filed on the basis of a statutory notice being Exhibit "K" to the petition is not maintainable. According to the learned counsel for the respondent under the statutory notice dated 10.3.2003, the claim was made on behalf of the petitioner herein the petitioner at that time did not have a valid assignment of the said claim as on the date of the notice because the notice is dated 10.3.2003 which is prior to the assignment deed dated 1.4.2003. According to the learned counsel for the respondent company, the said statutory notice being not valid notice as contemplated under section 434 of the Companies Act, 1956, the petition based thereon must be rejected and the same is liable to be dismissed.
10. The learned counsel has contended that the provisions of Section 434 empowers a creditor to give the notice. The said section reads as under :
434. (1) A company shall be deemed to be unable to pay its debts
(a) if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding one lakh rupees then due, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor.
(b) if execution or other process issued on a decree or order of any Court or Tribunal in favour of a creditor of the company is returned unsatisfied in whole or in part; or,
(c) if it is proved to the satisfaction of the Tribunal that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the Tribunal shall take into account the contingent and prospective liabilities of the company.
(2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm."
11. According to the learned counsel for the respondent company when the provisions of section 434 says that the company is unable to pay its debt if a creditor is claiming the said amount issues the notice and the debtor does not tender the amount within a period of 21 days then only it should be deemed to be unable to pay its debt. According to the learned counsel for the respondent company at the time when the claim was made by the petitioner by issuing a notice dated 10.3.2003, the petitioner was not a creditor of the respondent company and, therefore, the said notice is invalid and no petition for winding up can be based thereon.
12. On the other hand, the learned counsel for the respondent company has drew my attention to the judgment of the Rajasthan High Court in the case of Dawn Communications (P) Ltd. v. Rajasthan Petro Synthetics Ltd., reported in (1995) 4 Comp. LJ 63 (Raj).. and has contended that the issue raised by the learned counsel for the respondent company has been squarely dealt with by the judgment of the Rajasthan High Court in which the issue that whether such a notice which is issued prior to the assignment is valid or not. While dealing with the aforesaid argument in paragraph 5 of the said judgment the Rajasthan High court has held as under :
"5. Another preliminary objection was raised during the final arguments that no notice was served by the petitioner company under section 434(1) of the Act and as such, it cannot be said that the respondent company is unable to pay its debt. Admittedly, notice dated 18.5.91 (Annexure F) was served by the creditor (M/s. Dawn Communications (P) Ltd.,) upon the respondent company and reply dated 1.6.91 (Annexure G) was given by it. No objection has been raised in it that notice could not be given by them. Section 434 of the Act does not require that notice should be given by the petitioner who files the company petition and cannot be given by the creditor who has assigned his debt. Moreover, notice dated 19 July, 1991 (Annexure H) was served by Shri Sushil Dutt Sulman, Advocate for and on behalf of the petitioner company upon the respondent company. It reply dated 13 August, 1991 (Annexure I) was given to Mr. Sushil Dutt, Advocate. Section 439(1)(b) clearly provides that an application for winding up may be moved by a prospective creditor. When a petition for winding up can be moved by a prospective creditor in a company court, notice of demand can also be served by him. Moreover, it has not been shown by the respondent company as to how it has been prejudiced by the said notice. The respondent company states in its reply dated 13 August, 1991 (Annexure I) given through its advocates Mrs. Kitty Kumaramangalam as under :
(1) Your client M/s. Dawn Communications (P) Ltd., through Mrs. Vandana Agrawal approached Ms. R.P.S.L. for various types of work as mentioned in the bills submitted by your client.
(2) Your client executed the job after approval of the matter by my client, but as regards the rates of the order, it was never confirmed by my client......."
Thus there is no force in the said preliminary objection.
I am in complete agreement with the view expressed by the Rajasthan High Court for the simple reason that Section 434 does not contemplate that there should be a fresh notice under section 434 if the debt is assigned by the company. What it requires is only that as on the date of the notice a person should be creditor and before filing of the winding up petition if there is valid assignment, then the petition can be filed by assignee who has taken over all rights of the creditors under the assignment. In the present case, the notice dated 10.3.2003 has been issued for and on behalf of both the parties, namely, the original party Clicquot Hongkong Limited as well as Clicquot Asia Limited and, therefore, in my opinion, the issue raised by the learned counsel for the respondent company has no merits and, therefore, I reject the same.
13. More strong issue which has been raised by the respondent company is that the petitioner is not entitled to maintain the present petition in the absence of reendorsement of the bill of exchange dated 2.1.2002. It is contended by the learned counsel for the respondent company that the bill of exchange is admittedly endorsed in favour of the Bank and that there is no re-endorsement in favour of the petitioner herein so as to maintain the present petition. According to the learned counsel for the respondent company in the absence of the re-endorsement, the petitioner is not entitled to maintain the petition either on the bill of exchange or in respect of the original cause of action and, therefore, the said claim is liable to be rejected. The learned counsel for the respondent company has in support of the aforesaid argument relied upon a judgment of the Queen's Bench Division in the case of Davis v. Reilly, reported in 1898 I Q.B. page 1 and has contended that in the absence of re-endorsement the cause of action does not pass in favour of the petitioner and, therefore, the present petition cannot be maintained even on original cause of action for goods sold and delivered. The learned counsel has relied upon the following observations of the Queen's Bench Division in respect of the aforesaid contention :
"It seems to be clearly settled at common law that an action will not lie for the price of goods, for which a bill of exchange has been given, while the bill is outstanding in the hands of a third party. At the date of the commencement of this action he was not entitled to sue, and we have no power to amend so as to give him a new cause of action which he had not got when the action was begun. As to 201., parcel of the amount claimed, the appeal must be allowed."
14. The learned counsel has also relied upon an order passed by the learned Single Judge of this Court in Summons for Judgment No. 1030 of 1999 in Suit No. 3462 of 1999 in the case of Phenoweled Polymer P. Limited v. Cauvery Ceramics & Marketing Corporation.. dated 21.1.2002, more particularly the following portion of the said judgment.
"Dhanalaxmi Bank Limited has not reendorsed the hundies in favour of the Bank of India or the plaintiff. The plaintiff is not shown to be a holder in respect of the hundies and therefore, a triable issue arises whether the plaintiff is entitled to sue."
15. The learned counsel for the respondent company thereafter relied upon an order and judgment of the same learned Judge in Review Petition No. 19 of 2002 in Summons for Judgment No. 1030 of 1999 in Summary Suit No. 3462 of 1999 in the case of Phenoweled Polymer Private Limited v. Cauvery Ceramics & Marketing Corporation dated 27.11.2002 which arose from the review of the judgment and order dated 21.1.2002 aforesaid. The learned counsel has contended on the basis of the aforesaid orders passed by the learned Single Judge that re-endorsement is necessary for the purpose of maintaining a suit. According to the learned counsel for the respondent company because of non-re-endorsemnt in the said matter the learned Single Judge had granted unconditional leave to defend at the stage of grant of Summons for Judgment. The learned counsel has relied upon the following observations from the said order :
"2. The petitioner placed reliance on the judgment of the Division Bench rendered in Bank of India v. Faffans India Exports Pvt. Ltd. and contended that in view of the observations made in the said judgement, my earlier order granting unconditional leave to defend needs to be reviewed. The said Division Bench judgment was given in an appeal against judgement on merits after the trial. The Division Bench court came to the conclusion that there was an evidence on record that the endorsement made in favour of the Bank was only for the purpose of collection.
2. In the present case, trial of the suit is yet to commence. There is no evidence on record that the initial endorsement which was made in favour of Dhanlaxmi Bank was only for the purpose of collection. In fact, in the whole of the plaint, there is no averment that the endorsement made in favour of Dhanlaxmi Bank is in favour of the collection."
16. On the other hand the learned counsel for the petitioner has relied upon the judgment in the case of Jugalkishore Saraf v. Raw Cotton Co. Ltd. reported in 1955 SCR 1369 and the judgment of the Apex Court in the case of Dhani Ram Gpta and Ors. v. Lala Sri Ram and Anr. and the judgment of the Supreme Court in the case of Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay and Anr. as well as the judgment of the Madras High Court in the case of Nalluli Pandarathil Kamavan Baman Menon v. Collector of Malabar and Ors., reported in AIR 1924 Madras 904. I have perused each of the aforesaid judgments. In my opinion none of the said judgment is directly relevant in the present case because they do not relate to the issue at hand. None of the said judgements were dealing with the assignment subsequent to the statutory notice. In my view, the only question which is required to be considered is whether there is valid statutory notice under section 434 of the Companies Act, 1956 for the purpose of maintaining the present company petition and I have already dealt with the said issue accordingly.
17. On the second point of law, the learned counsel for the petitioner has relied upon the provisions of section 32 of the Negotiable Instrument Act which inter alia provides for liability of a maker and acceptance of a bill. In my opinion, the provisions of section 32 has no application to the facts of the present case.
18. Thereafter the learned counsel for the petitioner has relied upon the judgment of the Calcutta High Court in the cases of Brojo Lal Saha Banikya v. Budh Nath-Pyari Lal Das . By relying upon the aforesaid judgment it has been contended that the petitioners are entitled to maintain a proceedings on the basis of the original cause of action and re-endorsement is not necessary. The learned counsel has relied upon the following portion of the judgment:-
"In my judgment the effect of S.78 of the Act is this that it is not open to the defendant to plead that the holder of the instrument is not entitled to recover the money. If any third person sues the maker or acceptor of the promissory note, it would be a very good defence for him to say that he has been discharged by the holder of the instrument. Further, it would also be a very good defence to say that, unless the plaintiff in the suit gets him a discharge from the holder of the instrument, he is not bound to pay. But it would be going too far to say that that section prohibits any person other than the holder to bring a suit, if that person is the true owner. If that were the intention of the legislature, it seems that it would have been quite simple to state that:
no person, except the holder, would be entitled to institute any suit on the instrument."
19. The learned counsel for the petitioner has thereafter relied upon a judgment of the AIR (34) 1947 Allahabad 52. The said judgment is also relied upon for the proposition which has been referred to hereinabove in the judgment of the Calcutta High Court.
20. The learned counsel for the petitioner has thereafter relied upon the judgment of the Apex Court in the case of Jagjivan Mavji Vithalani v. Messrs. Ranchhoddas Meghji . In my opinion, the said judgment has totally no relevance whatsoever to the present case where the issue is required to be considered is whether the re-endorsement is necessary on the bill of exchange for the purpose of maintaining the proceedings.
21. Thereafter, the learned counsel for the petitioner has relied upon the judgment of the Rajasthan High Court in the case of Bhagirath v. Gulabkanwar and othrs, reported in 1956 Rajasthan 174. The Rajasthan High Court has held that the provisions of Section 78 of the Negotiable Instruments Act does not prescribe any other person except the holder of promissory note or bill of exchange to maintain a suit. It has been held that what section 78 really appears is that a payment in order to act as a full discharge of the instrument, must be made to the holder or as provided under section 82(c) of the Negotiable Instruments Act and it does not deal with the right to bring a suit. In my opinion, even the said judgment has no relevance for the simple reason because in the present case I am not considering whether there is any prohibition contained under section 78 of the Negotiable Instrument Act for giving clear discharge or not. I am in the present case considering only the issue whether for maintaining a proceeding re-endorsement is necessary.
22. After considering all the authorities cited by the parties before me, in my opinion the issue is in fact considered by this Court and in that view of the matter, I have considered the following judgements of this court and in my view the same answers the issue raised in the present petition. Firstly, the Division Bench of this Court in the case of Narayan Rajaram Joshi v. Prabhakar Keshav Bhangale has considered the issue about maintaining of a suit on the original cause of action by the person without re-endorsement in his favour. Though the said judgment arose solely in the context of an enquiry whether the endorsee of the bill of exchange can maintain a suit on the original cause of action or not. The Court after following the Supreme court Judgement and the Madras High Court judgment has held as under :
"It is a suit by an endorsee. Now, the effect of an endorsement is set out in s. 50 of the Negotiable Instruments Act and the effect is that the property in the promissory note is transferred to the endorsee with the right to further negotiation. It is to be noted that the original debt in respect of which the promissory note was passed is not assigned to the endorsee. The endorsee has no title to the debt. No privity is established with regard to the debt between the endorse and the maker of the promissory note. All that the endorsee gets by the endorsement is the right to sue on the promissory note and to recover the amount due under it. It therefore follows from this that an endorsee of a promissory note can only sue on the promissory note itself. He cannot sue on the debt as he is not entitled to that debt and in this case as the suit is by an endorsee not on the promissory no te but on the original debt, the suit is not maintainable."
23. Thus, if the debt is not assigned in favour of the person in whom the bill of exchange is endorsed then the said right to sue on the original debt or original cause of action still subsists and survives in favour of the endorser who has endorsed the bill of exchange in favour of third party. However, the issue was further considered by the Division Bench of this Court in the case of Bank of India v. Laffans India Exports Private Ltd., and another and the Court has in terms held that no re-endorsement is necessary for the purpose of maintaining a suit by the person who is originally entitled to the said claim. In paragraphs 10 to 16 of the said judgment the issue has been considered and it has been held as under :
"10. Mellon Bank is not the holder of these Bills. It is the drawee and acceptor of these Bills. It is not entitled to possession of these Bills without payment. In fact Mellon Bank has returned the bills to the appellants.
11. Do appellants cease to be the holders of the Bills? They endorsed the Bills in favour of Mellon Bank for realisation. Mellon Bank returned the Bills to the appellants without making payment. Is a re-endorsement by Mellon Bank in favour of the appellants necessary? We think not.
12. In the case of Nilgiri Trading Co. v. K. Simrathmull , the Madras High Court held : "The prima facie presumption is that if a person who endorses a bill of exchange to another, whether for value o for purposes of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appears in evidence, as the bona fide holder and proprietor of such bill and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full subsequent to the one to him, without producing any receipt or endorsement back from either of such indorsees whose names he may strike from the bill or not as he may think proper". The Madras High Court held that the mere absence of re-endorsement did not disentitle a previous endorsee who came in possession of the bill of exchange from being a holder of the bill of exchange and sue on it.
13. The Court relied upon an earlier decision of that Court in the case of Muthar Sahib Maraikayar v. Kadir Sahib Maraikayar, reported in I.L.R. 28 Madras 544. The Division Bench of the Madras High Court in that case had observed that negotiable instruments are choses in action and the rules in regard to them prior to the passing of the Negotiable Instruments Act continue to apply to them, to the extent that they are not expressly or impliedly affected by any provisions of the Act. In that case the endorser of promissory note had paid off his immediate endorsee and obtained possession of the note. There was however no re-endorsement in favour of the endorser. The Court held that the endorser was entitled to sue and recover on the note. The Court observed in that case : "... when a prior indorser, in the technical language of the law, 'takes up a note' se Ellsworth v. Brower, on payment to his immediate indorsee and discharges his liability under the contract arising by the endorsement, there is no provision either in the Negotiable Instruments Act or elsewhere prescribing the mode in which such 'taking up' of the notes is to be established." The judgment relied upon the observation of Story on 'Promissory Notes' to the effect that the possession of a note by the maker or by the payee or by any subsequent indorser is prima facie evidence that he is the true and lawful owner thereof and that he has acquired the full title thereto. A fortiorari, this will apply when the endorser obtains possession of bill of exchange from an endorsee who was merely an endorsee for collection and payment. The appellants, being endorsees who have obtained possession of the Bills are entitled to sue on them.
14. In Bhagayyanagar Cloth Stores v. Pessumal Harbhagvandas, reported in A.I.R. 1958 A.P. 33, the Andhra Pradesh High Court has also held that when the negotiable instrument is dishonoured and the endorser gets it back after satisfying the claim of the endorsee, he is remitted to his original right and falls again within the definition of a holder and the endorsee ceases to have any right under the bill. It is not essential that there should be any re-endorsement. Therefore, the holder of a negotiable instrument who has endorsed it to a third party could maintain a suit on the basis of it without its being re-endorsed to him if it appears that the bill was dishonoured when presented on maturity by the endorsee and the holder pays back the amount to the endorsee and comes into possession of the document, as the property in the note has reversed to him.
15. The question of payment to the endorsee does not arise in the case like the present when the endorsement was not by way of negotiation but was for the purpose of collection or realisation. Therefore, the appellant-Bank is the holder of these Bills of Exchange entitled to sue on them. See also in this connection the case of Hazarimal v. Sonraj .
16. The respondents contend that the appellant-Bank's suit must fail because on the date when the suit was filed, the appellant-Bank was not in possession of the Bills of Exchange. The Bills of Exchanges were returned to the appellant-Bank by Mellon Bank International some time after the suit was filed but long prior to the haring and final disposal of the suit. In our view, this is not a fatal defect. The appellants were entitled to possession of the Bills when the suit was filed and in fact obtained possession much before the suit was heard. Under section 3 of the Negotiable Instruments Act the holder of a bill of exchange means any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. The section goes on to say that where the bill is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction. So actual physical possession is not essential to constitute a person a holder. He must be entitled to possession. At the date when the suit was filed, the appellant-Bank was entitled to possession of the Bills of Exchange in its own right and to recover the amounts due thereon. The appellant-Bank, therefore, was holder of these Bills of Exchange at all material times."
24. While considering the said issue the Court has come to the conclusion that re-endorsemnt is not necessary if a bill of exchange is dishonoured and the person is holding the said bill of exchange thus, he is holder of the same and entitled to maintain the suit.
25. In the present case the bill of exchange is admittedly dishonoured by the respondent company. The petitioner herein are the original creditor of the respondent company and, thus, entitled to maintain the suit both on original cause of action as well as on a bill of exchange which has been dishonoured by the respondent company. The petitioners are holders of bill of exchange. The said bill of exchange is in their custody even though the same is not endorsed in their favour. The order cited by the learned counsel for the respondent company of the learned Single Judge of this Court, in my opinion, does not lay down any proposition of law firstly because that was an order at the stage of grant or refusal to grant leave. Secondly because, in my opinion, the ratio of the Division Bench judgment in the case of Bank of India v. Laffans India Exports Private Ltd., and Anr. directly applies in the present case that re-endorsement is not necessary as long as the person is a holder of the bill of exchange. In the aforesaid circumstances of the case, I find that in so far as the claim of the petitioner is concerned on the merits, the same is admitted by respondent. The legal arguments advanced by the respondents do not have much substance therein. I, therefore, do not find any serious bonafide defence raised by the respondent and, therefore, pass the following order:-
The respondent company to deposit a sum of 220,273 Euros at the exchange rate of the date of filing of the petition within a period of eight weeks from today with the Prothonotary and Senior Master, High Court, Bombay, On failing to do so the petition to stand admitted and to be advertised in Free Press Journal, Nav Shakti and Maharashtra Government Gazette at the costs of the Petitioner. The Petitioner shall deposit a sum of Rs. 2,000/-towards costs. The petition made returnable on 25.6.2005. In the event the said amount is deposited then the advocate for the respondent company to communicate the deposit of such amount to the petitioners advocate and the petitioners to file a suit within a period of four weeks from the date of such communication of deposit by the respondent company in this Court.
If the said amount is deposited the petition to stand dismissed.
If the amount is so deposited and the suit is filed then the said amount to be transferred to the credit of the said suit and the same shall be invested by the Prothonotary and Senior Master in fixed deposit with any nationalised bank initially for a period of three years and renew the same from time to time till further orders.
If such amount is deposited but the suit is not filed within the period of four weeks of communication of the such deposit, then the respondent company shall be entitled to withdraw the said amount from this Court.
26. Petition disposed of accordingly. No order as to costs.