Telangana High Court
CP/57/2011 of CARGILL INTERNATIONAL SA Vs M/S. ESSKAY SHIPPING (P) LTD., on 31 December 2014
C.V.NAGARJUNA REDDY Company Petition No.57 of 2011 Date:16.09.2014 Between: Cargill International SA, Switzerland, reptd by Sri Vikas Goyal, Constituted Attorney ……Petitioner And: M/s ESSKAY SHIPPING (P) LTD, Visakhapatnam. ….Respondent Counsel for the petitioner: Sri
HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDYCompany Petition No.57 of 2011
Date:16.09.2014
Between:Cargill International SA,Switzerland, reptd by Sri VikasGoyal, Constituted Attorney And:
M/s ESSKAY SHIPPING (P) LTD,Visakhapatnam.
……Petitioner
….Respondent
Counsel for the petitioner: Sri N.B.Sudarshan Counsel for the respondent: Sri Deepak Misra The Court made the following:
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ORDER:
This Company Petition is filed for an order towind up the respondent for non-payment of the debtallegedly due to the petitioner.
I have heard learned counsel for the petitionerand perused the record.
The petitioner averred that it was incorporatedunder the Companies Act, 1956 (for short ‘the Act’) inthe name and style of Cargill International SA on31.05.2000; that its objects, inter alia, are to engage inthe business of International trading of raw materialsincluding the agricultural, food and petroleum products, etc; that the respondent was incorporated under the Actin November, 1994; that is registered office is atVisakhapatnam; and that its main objects, inter alia, areto establish, maintain, undertake and carry on the tradeand business of Stevedores in all its branches and thebusiness of shippers, ship owners, ship brokers, shiprepairers, steamer agents, ship managers and allancillary services and for the purposes of purchase,take in exchange, charter, hire, build, construct orotherwise acquire and to own, work, manage and tradewith steam, sailing, motor and other ships, trawlers, etc.
The petitioner further averred that therespondent approached it and expressed its desire toact as its shipping Agent in India for the purpose ofclearance of import consignments in India; that thepetitioner has, accordingly, remitted into therespondent’s account a sum of US $3,76,379/-equivalent to Rs.1,67,18,755.18 on 29.04.2010 forhandling of the petitioner’s vessel, viz., M.V.Vogelbulker (for short ‘the vessel’); that the said vesselarrived at Gangavaram port on 29.04.2010 and it was inthe said port till 30.04.2010; that as per therespondent’s invoice, amount of disbursement onaccount of the said vessel was Rs.62,66,387/- and thesame was debited to the petitioner’s account forhandling the import consignment to the local importersof coal from the vessel at the said port; that therespondent has admitted that after the disbursements inrelation to the services for handling the goods from thesaid vessel, an amount of Rs.1,04,52,368/- was stilllying with it; that the vessel was further handled by therespondent at Krishnapatnam port in relation to importconsignments to the local importers of coal from thevessel and a sum of Rs.69,51,278/- was further appropriated by the respondent on this account; thatafter such appropriation, a sum of Rs.35,01,090/- wasstill lying with the respondent; and that the said fact wasacknowledged by the respondent in its various e-mails,dated 17.07.2010, 15.10.2010, 24.11.2010 and23.12.2010. The petitioner filed copies of the said e-mails along with the Company Petition.
It is further averred that as the respondent failedto return the sum of Rs.35,01,090/- to the petitioner,despite several efforts made by the latter, it has causedstatutory notice, dated 06.01.2011, on the respondentunder Section 434 of the Act, wherein the respondentwas called upon to pay the said amount with interest atthe rate of 18% per annum; and that the respondenthas sent reply, dated 26.02.2011, to the said notice,wherein it has admitted its liability. The petitioner allegedthat since the respondent failed to make any paymentdespite the debt being admitted, it has filed thisCompany Petition.
Sri Deepak Misra, learned counsel for therespondent, has filed memo, dated 15.09.2014, whereinhe has informed that he has sent notice to therespondent on 04.09.2014 which was received by thelatter on 08.09.2014 and that despite the said notice,the respondent has not sent any instructions to him.Learned counsel has, therefore, reported noinstructions to file counter-affidavit.
As the respondent failed to file a counter-affidavitdenying the contents of the Company Petition, all theabove-noted averments remained uncontroverted.
A perusal of the e-mails referred to above wouldshow that the respondent has clearly admitted the factthat the amount belonging to the petitioner is lying withit as an unspent balance amount. In its reply, dated 26.02.2011, sent to the statutory notice, the GeneralManager (Finance) of the respondent has clearlyinformed the petitioner that due to delay in realization oftheir dues from the reputed principals, they could notmeet the financial commitment on time and that if somemore time is granted to them, they will be able to remitthe amount.
In the face of these unequivocal admissions bythe respondent of the debt due to the petitioner and itsfailure to pay the admitted debt, the Company Petitionis admitted. The petitioner is directed to causepublication in two daily newspapers, viz., BusinessStandard (English) and Andhra Jyothi (Telugu) havingcirculation in the State of Andhra Pradesh within 45days from today and file proof of publication.
Post on 04.11.2014 for filing proof of publication.
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JUSTICE C.V.NAGARJUNAREDDY
16[th] September, 2014DR