Case: Posco-India Pune Processing Centre Private Limited Vs. M/S. Rojee-Tasha Stampings Private Limited &amp; Others

3. Petitioner is engaged, interalia, in the supply of steel products. The company had approached petitioner with an offer to purchase petitioners products and entered into multiple sales contracts cum confirmations with petitioner. Petitioner sold, supplied and delivered the goods toand raised various invoices. In company petition No. 656 of 2014, petitioner has raised 21 invoices on the company for a total sum of Rs.1,52,29,090.56. The company made an on account payment of Rs.7,86,539.60 leaving an outstanding amount of Rs.1,44,42,550.90. Despite repeated emails, no amount was paid. Statutory notice dated 26th April 2013 was sent but no reply was given by the company. Hence, petition came to be filed. On 25th June 2014, the following order was passed:Heard the Learned Advocates appearing for the Parties and the following order is passed by consent:i. The Respondent Company has agreed to pay to the Petitioner an amount of Rs. 6.07 Crores in full and final settlement of the claims of the Petitioner in the above four Company Petitions in 18 instalments starting from 30th July, 2014 as under:Sr. Nos.DateAmount130th July, 201410,00,000210th August, 201433,72,222310th September, 201433,72,222410th October, 201433,72,222510th November, 201433,72,222610th December, 201433,72,222710th January, 201533,72,222810th February, 201533,72,222910th March, 201533,72,2221010th April, 201533,72,2221110th May, 201533,72,2221210th June, 201533,72,2221310th July, 201533,72,2221410th August, 201533,72,2221510th September, 201533,72,2221610th October, 201533,72,2221710th November, 201533,72,2221810th December,In the event of the Respondent Company failing to pay any of the above instalment, the Company Petitions shall reviveto this Court, stand admitted, made returnable within six weeks from the date of default and advertised in two local newspapers i.e. Free Press Journal (in English) and Navshakti (in Marathi) and in the Maharashtra Government Gazette. The Petitioner shall deposit an amount of Rs.10,000/In the event of any default the Official Liquidator shall forthwith stand appointed as Provisional Liquidator of the Company. He shall immediately take charge of the books, records as well as the movable and immovable properties of the Company.iv. In the event of default and consequent Admission of the Company Petitions, Notice under Rule 28 of the Companies (Court) Rules, 1959 shall also stand waived on behalf of the Company. v. The above Company Petitions are accordingly disposed of.4. As respondent company committed default, petitioner filed an affidavit of one Jin Deok Park sworn on 12th February 2015 in which it is stated that the company defaulted on the amounts payable and out of the total amount of Rs. 6,07,00,000/, which though it agreed to pay, as stated in the order dated 25th June 2014, only a sum of Rs.12 lakhs was paid.5. In view of the self operative order, the petition came to be admitted and advertised. Notice under Rule 28 of the Companies (Court) Rules, 1959 stood waived by the consent order. Petitioner has also filed an affidavit of one Sandip Rikame affirmed on 19th January 2016 confirming advertisement the admission of the petition in Free Press Journal and Navshakti on 15th January 2015 and also in Maharashtra Government Gazette in the issue dated 5 to 11 March 2015 at Sr. No. 660.6. After additional affidavit of petitioner was filed,filed an affidavit of one Rohit R. Ganage affirmed on 15th September 2017 opposing the petition. The defences raised are as under :(a) Petitioner has suppressed the fact that the petitioners insurance company Ksure, Korea has paid the claim of petitioner and therefore by suppressing this fact, petitioner is attempting unjust enrichment.(b) Petitioner having received the amount from the Insurance Company under the insurance claim, there was no longer a debt outstanding and that petitioner is not a creditor of the company and therefore this petition would not lie at the instance of petitioner;(c) Petitioner is not a creditor within the meaning of Section 433 and 434 of the Companies Act for a debt;(d) The fact that petitioner had already received the amounts under the invoices on the basis of which the petition has been filed, albeit from its insurance claim went unnoticed when these four petitions were filed and respondent company could not bring it to the notice of the Court at the appropriate time.(e) Respondent, therefore, should be released from the statements and undertakings made to this Court in consent terms ofthe five points of defence can be dealt together.7. Similar points of defence were considered by this Court in an unreported order dated 22nd December 2014 (S.J. Kathawalla, J.) in Company Petition No. 294 of 2014 (Jiangsu Skyrun Wuxi Co. Ltd. Vs. Syrma Technology Pvt. Ltd.). I am in respectful agreement with the conclusions and findings of the learned Judge.8. This Court has held that in a case where an assured has received payments from the Insurance Company, assured is still entitled to proceed against the third party and its obligation is only to make good the amount paid by the insurer after having accounted for its own claim, i.e., to ensure that the assured is not paid in excess of its claim. A third party cannot be seen to take the defence that the claimant has already been paid out by the insurer and, consequently, avoid making payment on that ground.

Reasoning:
12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : pawar@ganagegroup.com) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company,submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order thatcame to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, isa false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) fromto petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.