@JUDGMENTTAG-ORDER
Vinod K. Sharma, J.@mdashThe Petitioner M/s. C.H. Robinson Worldwide Freight India (P) Ltd., through Mr. Nesal R. Lalan, Manager - Corporation Accounts, filed this petition u/s 433(e)(f) and 434(1)(a), 439(1)(b) of the Companies Act, for winding up of the Respondent company M/s. Winbro Logistics (P) Ltd. for its inability to pay the admitted liability.
2. The case set up by the Petitioner in the company petition is that the Petitioner is shipping agent and freight forwarders. In the course of business, the Respondent company approached the Petitioner for freight forwarding of their goods. As on 1.12.2008, the Respondent company was liable to pay a sum of Rs. 6,18,071/- (Rupees six lakhs eighteen thousand and seventy one only) under various invoices.
3. It is the case of the Petitioner that an amount was to be paid within 30 days from the date of arrival of the Cargo at the destination. But inspite of statutory notice, the Respondent company has failed to pay the amount, therefore, the Respondent company is liable to be wound up for its inability to pay the admitted liability.
4. On notice, counter affidavit has been filed wherein stand taken by the Respondent is as under:
5. The Respondent denies the allegations contained in para 4 of the petition. The Respondent during their business in 2008 approached the Petitioner for forwarding six consignments of dried flowers to be sent from Tuticorin Port to Savannah Port, at USA for their client Tristar Iiortitech India at Tuticorin. The first consignment was sailed on 18.07.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job number E 820147. The Petitioner raised Sea Export Invoice No.CIIE/SFE/0120 dated 21.07.2008 for Rs. 2,26,663/-. The Respondent paid this said sum of Rs. 2,26,663/- by cheque No. 417222 drawn on Indian Overseas Bank, Mount Road branch dated 25.08.2008 and the same was realized by the Petitioner on 25.08.2008. The second consignment was sailed on 20.07.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job Number E820159. The Petitioner raised Sea Export Invoice No.CIIE/SFE0129 dated 23.07.2008 for Rs. 2,26,663/-. The Respondent paid this said sum of Rs. 2,26,663/- by cheque No. 417208 drawn on Indian Overseas Bank, Mount Road branch dated 12.8.2008 and the same was realized by the Petitioner on 12.08.2008. The third consignment was sailed on 29.07.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job number E820167. The Petitioner raised Sea Export Invoice No.CIIE/SFE/0135 dated 29.7.2008 for Rs. 2,26,663/-. The Respondent paid the said sum of Rs. 2,26,663/- by cheque No. 417194 drawn on Indian Overseas Bank, Mount Road, branch dated 12.08.2008 and the same was realized by the Petitioner on 19.08.2008. The fourth consignment was sailed on 02.08.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job number E 820180. The Petitioner raised Sea Export Invoice No.CIIE/SFE/0146 dated 02.8.2008 for Rs. 2,26,663/-.
The Respondent paid this said sum of Rs. 2,26,663/- by cheque No. 417278 drawn on Indian overseas Bank, Mount Road branch dated 01.09.2008 and the same was realized by the Petitioner on 01.09.2008. The fifth consignment was sailed on 29.09.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job number E 820270. The Petitioner raised Sea Export Invoice No.CIIE/SFE/0175 dated 29.09.2008 for Rs. 2,43,792/-. The Respondent paid this said sum of Rs. 2,43,792/- by cheque No. 417039 drawn on Indian Overseas Bank, Mount road branch, dated 19.11.2008 and the same realized by the Petitioner on 31.03.2009. The sixth consignment was sailed on 07.10.2008. The said consignment consists of 3600 boxes of dried flowers and the same is numbered as Job number E720289. The Petitioner raised Sea Export Invoice No.CIIE/SFE/0188 dated 07.10.2008 for Rs. 2,44,917/-. The Respondent paid this said sum of Rs. 2,44,917/- by cheque No. 359311 drawn on Indian Overseas Bank, Mount road branch, dated 17.09.2009 and the same was realized by the Petitioner on 17.03.2010. The Respondent denies that as on 01.12.2008 they are liable to pay a sum of Rs. 6,18,071/- in various invoices mentioned therein. As on 01.12.2008 the Respondent was liable to pay sum of Rs. 2,44,917/- in respect of the invoice dated 01.12.2008 in reference No. CIIE/SFE/0188/08. The cheques issued by the Respondent to the Petitioner through Bankers pay order dated 17.09.2009 drawn on Indian Overseas Bank, Mount Road which was realized on 17.03.2010. The Respondent is not aware of the other invoices and the respective amount mentioned in para 4 of the petition. The Respondent never received any such invoices and the Petitioner has chosen to make invoices in order to harass the Respondent by filing petition for winding up. There is no contract between the Petitioner and the Respondent for payment of any demurrage charges are bond premium, inspection fees, deduction of container mentioned in the Petitioner. The Petitioner has chosen to file this petition for winding up of the Respondent company in order to extract the money illegally without any basis or reasonable cause. The Respondent is not liable to pay any amount in respect of the six consignments mentioned above for which all the amounts are paid fully as per the invoices. Hence there is no amount due to the Petitioner from the Respondent and hence this petition is liable to be dismissed.
5. The learned Counsel for the Respondent disputed the payment of demurrage charges, thus, the amount claimed is disputed amount. It has been specifically pleaded in the counter that the Respondent is solvent company and for the assessment year 2009-2010, turnover of the company was Rs. 7,04,50,000/- (Rupees seven Crores four lakhs and fifty thousand only), therefore, the Respondent company is commercially solvent.
6. Nothing has been placed on record by the Petitioner showing that the demurrage charges were payable by the Respondent company without any adjudication. The amount claimed therefore is disputed liability for which, a company cannot be ordered to be wound up, as the remedy available to the Petitioner is to recover the amount by due process of law, in the civil Court.
7. Finding no merit, the company petition is dismissed. No cost.
