ARROW ELECTRONICS INTERNATIONAL INC Vs. NITUL DATA SYSTEM

JUDGEMENT

(1.) This petition is instituted seeking an order of this Courtfor winding up the respondent-company on the ground that the respondent-company despite a statutory notice having been served has failed to pay off itsdebts.The facts, in brief, are that in the year 1988 the respondent-company placedan order for supply of various electronic components on the petitioner. Thepetitioner, which is a company based in New York having its representative basedin Bangalore, had despatched the consignment accompanied by the invoices alldated 12/09/1989, for the total value of US Dollars 16,992.21. Therespondent-company had declined to take delivery of the said goods taking theplea that even before the goods were despatched the respondent-company hadcancelled the order. The petitioner-company then had made arrangement for reexport of the said consignment back to America. It is alleged that later on therespondent-company agreed to have the delivery of the said consignment on theprices mentioned in the invoices but required the petitioner-company to pay thedemurrage charges to which the petitioner agreed and the fresh set of documentswere sent to the respondent-company for taking delivery of the goods and therespondent took the delivery of the goods after paying the customs duty on thebasis of the price quoted in the invoices. It is averred that despite the goods havingbeen utilized by the respondent-company, the respondent-company did not makethe payment and thus, after serving the statutory notice and on the failure of therespondent-company to make the payment within the stipulated period, thepresent petition was filed. It was mentioned that the respondent-company is liableto pay interest on this commercial transaction @ 20% per annum and the totalamount due from the respondent-company as on 5/10/1991, is 26,167 USDollars.

(2.) The respondent contested the petition pleading that the petition is notmaintainable as there is no admitted liability of the respondent-company towardsthe petitioner. It is averred in the written statement by the respondent-companythat even before the despatch of the goods the order placed by the respondent-company was cancelled vide its telex dated 30/06/1988, which was repeated byanother telex message dated 30/09/1988. It was further pleaded that theretook place some negotiations between the parties and the respondent had offeredto take the delivery of the goods if the price was to be revised in respect of one itemP 8275 at 11.45 US Dollars against invoice price of US Dollar 20.50 although thepetitioner-company had offered to reduce the price of the said item to US Dollar16.59. It is averred by the respondent-company that after adjustment of thedemurrage charges and difference in customs duty and on the basis of the revisedprice of US Dollars 16.59 the amount due from the respondent-company to thepetitioner-company would be US Dollars 11,634.79 only.So, it is pleaded that the respondent's defence is bonafide and the respondent-company has not neglected to pay its debt. It is pleaded that the amount claimedin the petition is not due to the petitioner and thus, the petitioner is not a creditorwho could present a winding up petition. It is also averred that the respondent-company is fully solvent and is not liable to be wound up. It was also mentionedthat the respondent-company has always expressed its willingness to remit theamount due to the tune of US Dollars 11,634.79 after obtaining the necessarypermission from the Reserve Bank of India.

(3.) So, the question which arises for consideration presently, in order to decidewhether this petition should be admitted or not, is whether the respondent-company has neglected or failed to pay its debt to the petitioner-company despiteservice of the statutory notice? The facts as are evident from the documents filedon the record are that on 12/09/1988, the petitioner had despatched thegoods as per invoices having the total value of US Dollars 16,992.21 despite the factthat prior to the despatch of the said goods the respondent had cancelled the saidorder and thus, on 30/09/1988, the respondent sent a telex by which itrefused to take the delivery of the goods as the order stood cancelled and alsopleaded that the price of the said particular item was US Dollars 11.45 per piece.On 7/10/1988, the petitioner requested the respondent-company toaccept the shipment and the petitioner was making efforts to get the better pricesfor the material. The petitioner, however, then finding that better price of thematerial was not available made arrangement to have the whole shipment returnedback to America. On 10/12/1988, the respondent-company informed thepetitioner that it would be very difficult for the petitioner-company to get the goodstransferred back to America and it suggested three conditions that new invoices besent directly to the respondent with correction of the invoice for the said item P 8275and that after the consignment was cleared, the respondent will send the money tothe petitioner and demurrage amount will be intimated to the petitioner forpayment by the petitioner. It was mentioned by the respondent in this documentthat it was willing to take the delivery of the consignment on the above terms inview of their past relationship. In response to this telex the petitioner had sent telexmessage dated 12/12/1988, in which it did not agree for reducing the priceand incur the losses and made a counter offer that the price of the said item can bereduced to US Dollars 16.59. On following day, i.e. 13/12/1988, therespondent sent the telex that it would accept the delivery only if the price isreduced to US Dollars 11.45. The petitioner did not agree to this offer and vide telexdated 20/01/1989, had informed the respondent that the petitioner was nowmaking arrangements forgetting the goods shipped back to America. On 31/01/1989 and on 6/02/1989, the petitioner sent telex messages to its agent andto the respondent for making arrangement of documents for shipping back thegoods. On 13/02/1989, the Cargo Agent, who was to ship back the goods,had asked the petitioner to submit the documents for re-export.