EASTERN CLEARING Vs. OCEAN EMPIRE LINES LTD

JUDGEMENT

(1.) The petitioner, namely, Ocean Empire Lines Limited (hereinafter for the sake of convenience referred to as the 'OEL') has filed the instant application under the provision of Sections 433, 434 and 439 of the Companies Act (hereinafter referred to as the said Act) inter alia seeking winding up of Eastern Clearing and Forwarding Agency Private Limited (hereinafter referred to as the said company).

(2.) The petitioner says that two shipping containers belonging to the petitioner bearing numbers CLHU2729950 and XINU1293115 respectively and each of 20 feet in length has been utilized for carrying cargo vide bill of lading bearing no. OEL/CCU/15/08/1101 dated 25th August, 2015 by a ship from Bandar Abbas, Iran to Kolkata Port for being forwarded onward to Nepal by land to the consignee. The consignor as appears from the bill of lading (annexed to the company's affidavit-inopposition) is AL KAHF METAL TR.CO.LLC, P.O. Box-69467, Sharjah-U.A.E. and the consignee is Aman International, Birgunj-Nepal. The said company cleared the goods from the customs authority at Kolkata Port and sent the same to Nepal. The petitioner further say that, as per the practice in the trade and the agreement between the said company and the petitioner the said company became liable to make payment of the hire charges/detention charges in respect of the aforesaid two containers from the date of realise from the Kolkata Port till the date the said two containers were returned to the petitioner. The petitioner also says that the agreed rate of hire charges/detention charges was US$ 75 per day per container converted at the then prevailing exchange rate being Rs. 68 per dollar. The petitioner states that for the period between 13th October, 2015 till 7th November, 2015 the petitioner has raised three bills and another bill dated 12th October, 2015 towards miscellaneous charges. The aggregate of the said four bills come to Rs. 2,99,300/-. Records reveal that the said company has paid a sum of Rs. 2,94,000/- after deducting a sum of Rs. 5300/- from Rs. 2,99,300/- as TDS. The petitioner though claims that there is an unpaid sum of Rs. 5300/- but the same having been deducted towards TDS and that the certificate thereto being annexed to the company's affidavit-in-opposition it should be and accordingly held that the entire amount against such four bills have been paid by the said company.

(3.) The petitioner, however, says that the containers till the date of filing of the winding up petition has been lying with the said company. In that view of the matter, the petitioner has claimed detention charges from 8th November, 2015 to 7th June, 2016 at the rate of 75US$ converted into INR at the rate of Rs. 68 per US$ aggregating to Rs. 21,72,600/-. The petitioner has also claimed a sum of Rs. 3,15,338/- on account of outstanding service tax on the said detention charges as well as a sum of Rs. 5300/- being the alleged unpaid amount from the previous bills. After discounting the said sum of Rs. 5300/- for the reasons as stated hereinabove it appears that the aggregate sum claimed as outstanding debt by the petitioner is Rs. 24,87,984/-. On the basis of these allegations by the petitioner vide its statutory notice dated 8th June, 2016.