*1* cp.86.11.905.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.86 OF 2011 M/s UVM Shipping Services Pvt.Ltd.. ..Petitioner -versus- M/s Global Logistics Solutions (I) Pvt.Ltd.. ..Respondent ............ Mr.Karl Shroff a/w Mr.Arun Mehta and Ms.Payal Parikh i/by Akshar Laws, for the Petitioner. Mr.Vishal Kanade and Mr.Shadab Peerzode, for the Respondent. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 24th November, 2011. P.C.: 1 This is a petition for winding up filed by the Petitioner private limited company carrying on its business of shipping/freight forwarding and import and export as well as is dealing with the containers owned by them or their associates. It is stated that the Petitioner regularly obtains the containers from abroad through the help of shipping carriers/feeder operators, operating between Kolkata, Singapore and Malyasia. 2 The Respondent is also engaged in identical business. In course of its business, the Respondent regularly hires the containers from third parties for shipment of goods. However, on 08.01.2010, the representative of the Respondent Company approached the Petitioner for hiring two containers for the purpose of export from Kolkata to Malyasia. The discussions took place between the representatives of the Petitioner and the Respondent Company and appropriate freight fee of USD 10 per container was fixed. The containers were to be made ready in all respects and be shipped on Vessel Saipon Voyager Voyage 206. The Export Cutting Order is referred to in this behalf in paragraph 6 of the petition and a *2* cp.86.11.905.sxw copy thereof is annexed as Exhibit-B. 3 The Petitioner Company, as per the terms and conditions agreed upon, issued a “pick up” letter dated 28.01.2010 for release of two containers to the Respondent Company. Annexure-C is the copy of this letter. It is alleged that the Respondent took delivery of the containers on 28.01.2010 for shipping of goods, being drilling chemicals, from Kolkata to the Port of discharge being the Port K-Lang, Malyasia. 4 The necessary debit note for detention charges was forwarded by the Petitioner on email to the Respondent and the Respondent was called upon to pay the amount of Rs.9,22,709/-. 5 It appears from reading of the petition itself that the containers, on entering the port area and prior to their loading into the ship, were detained by the Customs Authority for inspection and thereafter, were stuffed with the seized Cargo, pending adjudication of the case. There is a letter dated 28.10.2010 issued by the Directorate of Revenue Intelligence, Kolkata to the Customs Authority informing that the containers in question are not liable for confiscation, however, the Directorate of Revenue Intelligence has no objection if the containers are ordered to be released after de-stuffing the seized goods in the custody of the Customs. Thereafter, what has been alleged by the Petitioner is that the containers are lying in the Port area since 28.01.2010 without any action being taken to retrieve the same by the Respondent. The Port authorities have been forwarding regular communications on account of demurrage and/or detention charges for the said two containers. The Respondent has failed to take any action to release the said containers. Therefore, the Petitioner addressed a communication and reference thereto is made in paragraph 12 and subsequently, there is reference to the claim of damages of Rs.4,44,892/- as a measure of loss of business on *3* cp.86.11.905.sxw account of the containers being detained. In such circumstances, the statutory notice was issued and the amount referred to therein was demanded. The statutory notice was duly sent at the registered office of the Respondent and there is postal acknowledgment evidencing its delivery and receipt. It is stated that the reply was given thereto on 14.12.2010 by the Respondent denying its liability. 6 It is in these circumstances, Mr.Shroff, learned counsel appearing for the Petitioner, submits that it is for the Respondent to deal with the claim of the Directorate of Revenue Intelligence, the Customs Authority and the Port Authority. If the consignment loaded on the containers was of such nature that it could not have been shipped or transported or that certain compliances that were required to be made before loading, that was the sole responsibility of the parties booking the containers, in this case it is the Respondent. The Petitioner is not concerned because it honoured the commitment or contract for handing over the containers. For all these reasons, the defence raised by the Respondent is not bonafide, therefore, the Company Petition deserves to be admitted. 7 On the other hand, it is argued on behalf of the Respondent by Mr.Kanade that this petition for winding up cannot be entertained. The defence of the Respondent is bonafide. The defence has been outlined in the affidavit in reply and prior thereto in the reply to the statutory notice. The Petitioner is not only claiming alleged container charges or freight, but also damages and loss in business. It is also claiming demurrage or detention charges. When such is the nature of claim, the remedy of the Petitioner lies elsewhere and not the winding up proceedings. It is clarified that the Respondent is engaged in shipping/ freight forwarding business and therefore, involved in booking the containers. The containers *4* cp.86.11.905.sxw belong to the shipping line i.e. Petitioner in this case. The goods in the containers in the present case belong to the shipper i.e. Srijani Agency. In such circumstances, apart from booking the containers as agreed between the parties, the Respondent has no other obligation. It was shipper who had stuffed the goods in the containers and it was sole responsibility of the shipper for the further movement for the purpose of carriage of the said goods. It was his obligation to remove the containers from the Port Authority. In these circumstances and when the Respondent was only facilitator for providing containers, which the Petitioner is well aware, reliance placed on the Export Cutting Order substantiate the defence raised by the Respondent. In such circumstances, this petition for winding up is not maintainable and should be dismissed. 8 My attention is invited to the affidavit in rejoinder filed by the Petitioner and it is contended that the Respondent is not disputing its admitted liability. There is no defence to the claim nor is bonafide disputed. Once the Respondent is avoiding making payment of an admitted sum, then, the petition for winding up on the ground of non compliance with the statutory notice be admitted. 9 With the assistance of the learned counsel appearing for the parties, I have perused the petition and annexures thereto, so also, the affidavits on record. The case of the Petitioner is that it is admitted by the Respondent that it hired the containers from the Petitioner for export of the goods. The Petitioner issued a “pick-up” letter and obtained the export carting order. There was no privity of contract between the Petitioner and the Shipper. Once the Respondent cannot be said to be facilitator, then, its liability to pay the sums is absolute. 10 I have perused the copy of the Export Cutting Order (Exhibit- B to the petition), which refers to the name of the shipper as Srijani *5* cp.86.11.905.sxw Agency. It is not addressed by the Petitioner, but one Indian Mercantile Agency stated to be the Customs Authorised Clearing & Forwarding Agent. It is addressed to the Deputy Docks Manager, Kolkata Port Trust, wherein, the name of the shipper and the consignment is mentioned. A “pick-up” letter (Annexure-C to the petition) stated to be addressed by the Petitioner, is a communication which is referred to in the petition as being addressed to the Respondent Company. However. perusal of the same will make it clear that it is addressed to one Grand Smity, Sick Lane, Opposite Nepal Carrier, Plot In Charge. It states as under:- “Kindly arrange to hand over the following 4x20’ GP container to the bearer of this letter. Validity: Upto dt.30.01.2010, Pol/Pod : Kolkata/ Port Klang W/House Stuff. Shipment Vessel: Saipan Voyager Voy.206, Rot/No.16175 Dt.21.01.2010, VCN:CCU10901205 Deliver 4x20’ FP containers to M/s Global Logistics Solutions (India) Pvt.Ltd. Container No.Unit EX.VSL IMP/ROT No.G TEE No.& Dt. Any 2 x 20’ Note : Please make the survey without any fail before pick-up container I am the yard to avoid any unwanted problem in near future.” 11 On the strength of these documents, what has been argued before me is that the Petitioner had placed the containers at the disposal of the Respondent. The communications at pages 24 to 26 by emails are being referred to. If same are perused, it is clear that what the Petitioner states is that there was booking of the containers from the Respondent’s Kolkata Office and that is how the pick-up letter was issued. Subsequently, the Agent of Customs took the carting order from the Petitioner, but the containers were not made ready for that particular vessel for which they were booked. Upon investigation it was found that due to delay in *6* cp.86.11.905.sxw stuffing, the Shipper could not make the cargo ready and on subsequent mails and personal discussions, it was revealed that the containers were seized as the items stuffed therein are banned and not meant for export. 12 Thus, whole claim arises not on the basis of the outstanding charges for hiring the containers alone, but because of the containers having been booked allegedly for the items which are banned and the containers lying idle, resulting in loss of business and damages to the Petitioner. The claim which is now raised makes the proceedings one for recovery of money and damages and that is certainly not the purport and intent of these proceedings. In these circumstances, it cannot be said that the Petitioner can proceed on its own averments and statements to seek the winding up of the Respondent Company. The statements made in the affidavit and prior thereto in the petition and annexures itself would go to show that these are matters for which the Petitioner will have to file appropriate proceedings for recovery and prove its case. The defence raised by the Respondent cannot be said to be lacking in bonafides or vexatious or frivolous. From the statements made in the petition itself, it cannot be held that this is a case of inability to pay the debts and for raising necessary presumption in terms of the statutory provisions of the Companies Act, 1956. 13 For all these reasons, the Company Petition fails and it is, accordingly, dismissed, with no order as to costs. 14 However, it is clarified that all observations and findings have been made for the purpose of disposing of the Company Petition and shall not in any manner affect the proceedings, if any initiated by the Petitioner, for recovery, either by way of suit or otherwise. (S.C. Dharmadhikari, J)