Case: Mediqup Systems Pvt. Ltd Vs. Proxima Medical System Gmbh

3. The short facts which are relevant for the purpose of disposal of this appeal are as follows:The appellant-Company is engaged in business of import of medical equipment and service thereof in general and ULTRA-SOUND SCANNERS, in particular. The respondent-Proxima Medical System, GMBH, issued legal notice to the appellant-Company under Section 434 of the Companies Act mentioning that the appellant-Company is liable to pay the respondent of sum of US $ 5000 and US $ 11000 aggregating to US $ 16000. The appellant replied to the said notice and denied the liability to pay the amounts to the respondent. The respondent-Company filed a winding up petition being C.P. No.316 of 2001 against the appellant-Company, inter alia, praying that the Company be wound up by the order of the Court and Official Liquidator of the Court be appointed as Liquidator of the Company to take charge of its assets. It was alleged therein that despite notice, the Company failed and/or neglected to refund US $ 5000 and US $ 11000 which was allegedly remitted by the respondent-Company as partial bid security in respect of two global tenders. The appellant filed affidavit in opposition to the winding up petition contending that the said amounts were not payable to the respondent-Company and the appellant disputed its liability. The following documents were relied in support of the aforesaidIntimation note issued by Vijaya Bank being FTTI/NSC/73/99 dated 3.5.1999.(ii) Foreign Inward Remittance Certificate No.0014709 dated 6.5.1999.(iii) Memorandum issued by Reserve Bank of India No.CA EC 357/09 46 0662/98-99 dated 30.6.1999.(iv) Document issued by Deutche Bank showing the name of remitter as PAMEDA.On 12.9.2002, the Company Judge disposed of the winding up petition holding, inter alia, that so far as US $ 5000 is concerned, the appellant-Company has disputed the amount but in so far as US $ 11000 is concerned, the same should be repatriated to remitter (which in the present case is not the respondent). The learned Judge directed the Company to deposit Rs.4,69,480/- equivalent to US $ 11000 to the Registrar, Original side of the High Court at Calcutta. It was further observed by himDutta has, however, seriously disputed the entitlement of the petitioner to recover this sum. I have not adjudicated any of these points and as and when the petitioning creditor files a suit, it will be open to Mr. Duttas client to take all points available to him.It is made clear that it will be open to the Company to take such defence as is available to them both on points of fact and law.In default of deposit of the aforesaid sum within the stipulated period herein, this petition shall stand admitted and it will be open to the petitioning creditor to pray for direction for advertisement.The money to be deposited shall remain to the credit of the lawful beneficiary thereof.Suit, if any, is to be filed by the petitioning creditor within three months from the date of deposit and in default of such, suit being filed, it will be open to the company to apply for refund of the

Reasoning:
15. In our opinion, the High Court has failed to appreciate that there is a bon a fide dispute concerning US $ 11000. While the learned single Judge had held the dispute concerning US $ 5000 is a bona fide dispute, he has erred in not holding that the dispute concerning US $ 11000 also is bona fide. The High Court, on the one hand, has held that the Company has admitted in no uncertain terms that US $ 11000 should be repatriated to the remitter on the other hand, the learned judge failed to appreciate that the petitioning creditor in the instant case was not the remitter and was not entitled to the said sum of US $ 11000. It is not in dispute and as admitted by the respondent-petitioner creditor that the remitter of the sum of US $ 11000 was one M/s Pameda Medixinische Systems and not the petitioning creditor and that because of the discrepancy in the name of the remitter, the Reserve Bank of India had initially withheld permission. In our view, the prima facie case has been made out by the appellant for not remitting the Indian amount equivalent of US $ 11000 as admittedly the petitioning creditor was not the remitter and cannot have any claim in respect of US $ 1100. In our opinion, the learned Judges of the High Court have erred in directing the Company to deposit a sum of Rs.4,69,480/- with the Registrar, Original side of the High Court at Calcutta. The question of the company depositing the same with the Registrar, Original side, did not and could not arise since the petitioning creditor was not the remitter. A reading of the order of the High Court would show that the learned Judges themselves had doubt regarding lawful entitlement of the petitioning creditor and erred in directing the appellant-Company to deposit the amount and in default directing admission of the appeal.16. We have carefully perused the order. There is no clear cut finding by the learned Single Judge that a debt is prima facie due and payable by the Company to the petitioning creditor. In our opinion, the impugned orders have been passed in a purported exercise of jurisdiction not vested with the Court sitting in the Company Court for an application for winding up of the company, the Company Court head no jurisdiction to direct the company to deposit the amount payable to third party or to a party other than the petitioning creditor.17. In our opinion, the Division Bench is not justified in dismissing the appeal summarily holding that the appellant was not entitled to stay of the operation of the order passed by the Company Judge under appeal.