ADAMEX SA Vs. EVERGREEN INTERNATIONAL LIMITED

JUDGEMENT

(1.) The present petition has been filed seeking winding up of the respondent-company on the ground of inability to pay its debt.

(2.) Learned counsel for the petitioner submitted that the petitioner is a Swiss company having its registered office in Switzerland. It is engaged in the business of financing international trading. The respondent-company is engaged in the business of manufacture and export of Darries, Carpets, Fabrics, Handloom items, Leather Goods etc. Since 2008, the petitioner had been financing purchase of raw material by the respondent-company either by way of letters of credit or cash against documents. On some occasions, even the exports were also financed. The invoices being raised by the petitioner-company were to be cleared within a period of 120 days. Upto the year 2010-11, the payments were being made by the respondent-company except some isolated defaults, however, from October, 2011 onwards, there have been many defaults. Details of invoices raised from 11.10.2011 onwards have been furnished, in terms of which a sum of US$ 1,812,020.06 is due from the respondent-company. To establish the fact that the aforesaid was the admitted liability of the respondent-company, communications/emails dated 15.4.2013, 16.8.2013 and 11.9.2013 have been referred to. When despite the aforesaid communications and repeated requests made by the petitioner, the debt was not cleared, statutory notice for winding up dated 17.10.2013 was got issued claiming outstanding liability of US$ 2,025,868.57 ( principal amount of US$ 1,812,072.06 and US$ 256,146.31 being interest calculated @ 9% per annum). The same was replied to by the respondent-company raising frivolous grounds claiming that there was oral tripartite agreement between the petitioner-company, respondent-company and M/s Cuirco Diffusion (for short, 'Cuirco'), a sister concern of the petitioner-company and the amount due from the respondent-company was to be set-off against the amount recoverable by the respondent-company against Cuirco. It was claimed that the amount for the raw material received by the respondent-company through invoices arranged by the petitioner was to be paid after receipt of payment of the finished goods exported to Cuirco.

(3.) On the other hand, learned counsel for the respondent submitted that the e-mails, as are sought to be relied upon by the petitioner, do not in any way suggest that any amount is admitted to be outstanding against the respondent-company, rather, it shows that there is a clear link between the petitioner-company, respondent-company and Cuirco and the payment to the petitioner was linked with receipts from Cuirco. Even the petitioner in its petition has admitted that the respondent-company was to remit 20% of the payment received by it against exports, which had been financed by the petitioner. This export is directly linked with exports to Cuirco. All these facts have been clarified by the respondent in reply to the statutory notice stating that the respondent-company had been exporting leather jackets to Cuirco since 1998. The petitioner-company was introduced by Cuirco to the respondent-company claiming it to be a good company financing import of raw leather. In fact, the raw leather was imported by the respondent-company, however, Cuirco cancelled number of orders, which resulted in problem and payments were delayed. Despite this, payments to the tune of US$ 16,39,177.10 were made by the respondentcompany to the petitioner-company during the period from 2011-13. The fact that the petitioner-company was introduced by Cuirco is not even denied. There had been joint meetings between the parties, which itself suggest that the petitioner-company and Cuirco are one and the same thing. Learned counsel further referred to various e-mails, as annexed with CA No. 90 of 2015, showing that there had been regular communications between three parties, which clearly suggest that transaction of the respondentcompany with the petitioner-company was not independent, rather, these were joint dealings between three parties and payment to the petitionercompany was linked with receipt of payment from Cuirco. Even three of the invoices for exports to Cuirco were raised against the petitioner, which further fortifies the contention raised by the respondent-company regarding link between three companies. The petitioner-company had not been fair as it has failed to produce on record entire communications between the parties. He further submitted that a civil suit has been filed by the respondent-company against the petitioner and Cuirco on 6.3.2014 claiming certain amounts. As the same is pending and the debt being bonafidely disputed, the present petition deserves to be dismissed. In spite of issuance of notice in the civil suit, the petitioner and Cuirco did not appear. The factum of pendency of civil suit is in the knowledge of the petitioner and Cuirco.