Tolani Shipping Co. Ltd. vs Saw Pipes Ltd.
1997 Latest Caselaw 835 Del

JUDGMENT

Dr. M.K. Sharma, J.

1. This is a petition under sections 433, 434 and 439 of the Companies Act, 1956, filed by the petitioner praying for winding up of the respondent-company on the ground of its inability to pay the debt to the petitioner. According to the petitioner, the respondent-company is indebted to the petitioner to the tune of Rs. 13,63,886 along with interest thereon at 18 per cent. per annum from July 28, 1993.

2. The case of the petitioner, as set out in the petition, is that the petitioner is the holder of three bills of exchange dated June 28, 1993, and paid the amount as mentioned in the said bills of exchange to Rahat Steels Pvt. Ltd. The respondent-company, according to the petitioner, is liable to pay to the petitioner the total sum of the three bills of exchange amounting to Rs. 13,63,886. The petitioner has specifically stated that on or about June 28, 1993, Rahat Steels Pvt. Ltd. drew in favour of and delivered to the petitioner, three bills of exchange bearing the following particulars :

      Bill hundi Nos.            Amount         Due date
                                (Rs.)
RSPL 2.93-94 NSK 152          3,63,694        28-17-1993
RSPL 2.93-94 NSK 153          2,23,872        28-7-1993
RSPL 2.93-94 NSK 151          7,76,320        28-7-1993
                            -------------
Total                        13,63,886
                            -------------
 

3. It is stated that the aforesaid bills of exchange were accepted by the respondent-company and on maturity when the said bills of exchange were presented for payment on July 28, 1993, to the respondent-company the same were dishonoured by non-payment. Accordingly, a statutory notice was issued but in spite of service of the said statutory notice the respondent failed to pay the amount and hence this petition.

4. The respondent has contested the present proceeding by filing a detailed reply denying their liability to pay the aforesaid amount as claimed in the present petition. According to the respondent, as stated in the reply, an amount of Rs. 10,87,310 stands paid to Rahat Steels Pvt. Ltd. as against the aforesaid three bills of exchange and, therefore, only an amount of Rs. 2,76,576 if at all, is left payable by the respondent to the petitioner.

5. Mr. Keshwani, appearing for the petitioner, submitted that as against the three bills of exchange the respondent was required to pay a sum of Rs. 13,63,886 to Rahat Steels Pvt. Ltd., and admittedly as disclosed from the reply till date only an amount of Rs. 10,87,310 has been paid by the respondent and, therefore, the balance amount is admittedly due and payable by the respondent. Mr. Chandiok, appearing for the respondent, admitted that as against the aforesaid three bills of exchange an amount of Rs. 2,76,576 is payable by the respondent and he has no objection if the aforesaid amount of Rs. 2,76,576 i.e., the difference between Rs. 13,63,886 and Rs. 10,87,310 is directed to be paid to the petitioner out of the amount deposited by the respondent in this court in terms of the order dated July 24, 1996.

6. The next submission of counsel for the petitioner is that the story put up by the respondent that it has paid the amount of Rs. 10,87,310 to Rahat Steels Company as against the three bills of exchange is incorrect and belied on the face of the record of the case inasmuch as the specific pleading of the respondent is that it had paid the amount to Rahat Steels Pvt. Ltd., on the due date which is July 28, 1993, but the two cheques placed on record by the respondent are dated, July 29, 1993, and August 9, 1993, which is much after the due date. The aforesaid submission of learned counsel cannot be accepted on the face of the record of the case placed in the present case particularly in view, of the bank payment voucher placed on record. The said vouchers disclose payment of an amount of Rs. 10,87,310 by the respondent to Rahat Steels Pvt. Ltd.

7. My attention was also drawn to a certificate issued by the State Bank of India to the respondent-company, annexed as exhibit R-14 to the reply certifying that the aforesaid amount of Rs. 10,87,310 has been paid by the respondent to Rahat Steels Pvt. Ltd. One of the aforesaid bank payment vouchers for an amount of Rs. 5 lakhs paid to Rahat Steels Pvt. Ltd., discloses the payment details giving the bill numbers therein as 127, 128 and 129 which numbers also tally with the bill numbers as shown in bills of exchange No. RSPL 2.93-94 NSK. 151. The other payment voucher for the amount of Rs. 5,87,310 shows the payment details being payment made to the, party for purchase of 'steel. Documentary evidence is, therefore, on record to indicate that payments were made by the respondent to Rahat Steels Pvt. Ltd., for an amount of Rs. 10,87,310. Counsel appearing for the petitioner sought to rely upon the letter annexed as annexure 11 to the reply filed by the respondent dated August 13, 1993, issued by K. M. Consultancy and Financial Services to the respondent. According to the petitioner the said document gives the number of the bill of exchange with the invoice numbers and also the name of financiers wherein the name of the petitioner appears. On a perusal of the aforesaid document, I cannot agree with the submission of the counsel for the petitioner that the said document names the petitioner as a financier. The names shown in the document as financiers are Tolani Bulk Carriers Ltd. and K. Mohan and Co. Fashions (P.) Ltd. None of them is the petitioner in the present case and, therefore, the said document does not help the petitioner in any manner. The contention of the petitioner that the respondent did not pay any amount to Rahat Steels Pvt. Ltd., because any payment made to the said Rahat Steels Pvt. Ltd. would have caused return of the bills of exchange to the respondent also cannot be upheld. The certificate issued by the bank indicating payment of the aforesaid sum of Rs. 10,87,310 is on record and, therefore, the defense taken by the respondent that it had paid the amount of Rs. 10,87,310 to Rahat Steels Pvt. Ltd. appears to me to be a bona fide and valid defense.

8. The next submission of learned counsel for the petitioner is thai the signatures on the bills of exchange are admitted by the respondent. The aforesaid statement of learned counsel for the petitioner is not disputed by the respondent. The signatures for and on behalf of the respondent-company on the bills of exchange are not and cannot be disputed. However, the specific case of the respondent is that when the same were executed by the respondent-company, the name of the petitioner who is alleged to be the beneficiary was not written and the same at that point of time were blank, which according to the respondent is also an admitted position by the petitioner. On a perusal of the pleadings of the parties, I find that the petitioner has admitted in its rejoinder that the aforesaid bills of exchanges Nos. 151, 152 and 163 when accepted by the respondent were blank and that the name of the financier, the petitioner was not written at that point of time.

9. The petitioner next contended that the petitioner is the bona fide holder of the bills of exchange and That it had paid full amount to the drawer namely - Rahat Steels Pvt. Ltd. III support of his contention learned counsel drew my attention to the records of the case. On perusal of the same, however, I find that the bank statement placed on record by the petitioner is neither is neither signed by or on behalf of the bank in question nor the half of the bank in question nor the same is certified under the Bankers' Book Evidence Act. In that view of the matter the said statement has no evidentiary value at all. Some other documents are also placed on record which are at pages 76 and 77 of the paper book but the said documents do not relate to the petitioner but to K. Mohan and Co. Pvt. Ltd. Therefore, the petitioner cannot avail of any benefit from the aforesaid document.

10. Learned counsel appearing for the petitioner drew my attention to the provisions of section 78 of the Negotiable Instruments Act. Relying on the aforesaid provision counsel sought to submit that in terms of the aforesaid provision payment could have only been made by the respondent to the holder of the instrument which was the petitioner in the present case. Section 78 provides as to whom payment should be made when it lays down that subject to the provisions of clause (c) of section 82, payment of the amount due on a promissory note, bill of exchange or cheque must, in order to discharge the maker or acceptor, be made to the holder of the instrument. On a plain reading of the aforesaid provision it is clear and apparent that the aforesaid provision is subject to the provisions of section 82, clause (c). Accordingly, it would be also necessary to refer to the provisions of section 82 which lays down the circumstances under which a liability gets discharged. Clause (c) of section 82 provides that the maker, acceptor or endorser respectively of a negotiable instrument is discharged from liability thereon by payment to all parties thereto if the instrument is payable to bearers, or has been indorsed in blank, and such maker, acceptor or endorser makes payment in due course of the amount due thereon. It is the admitted case of the parties in the present case that the three bills of exchange when executed by the 'respondent were indorsed in blank by the respondent and, therefore, when payment is made by the respondent to Rahat Steels Pvt. Ltd., the requirement as provided for under section 82(c) is satisfied and, therefore, on making payment by the respondent to Rahat Steels Pvt. Ltd., to the extent of Rs. 10,87,310 the endorser, namely, the respondent would get discharged, from liability to pay to the aforesaid extent.

11. Accordingly, therefore, in my considered opinion reliance on the provisions of section 78 by counsel for the petitioner is misconceived and misplaced and, in my opinion, the said provision is not applicable to the facts of the present case.

12. In the light of the aforesaid conclusions reached by me on the facts and the record of the case, I am of the view that the respondent has been able to make out a valid, bona fide and genuine defense which gives rise to disputed questions and issues which cannot be tried and decided through the present summary proceeding. Since entire amount in this court it also cannot be held that the respondent is unable to pay its debt. The petitioner, therefore, has failed to make cut a case under sections 433, 434 and 439 of the Companies Act and the petition, accordingly, stands dismissed with a direction that an amount of Rs. 2,76,576 be paid to the petitioner out of the amount of Rs. 13,63,886 deposited in this court and, the balance amount with interest accrued thereon be returned to the respondent.