NO. 3419/DBE/ADP-IV/2014/ 1811
dated 15/1/1977 for ASCR Conductors.
We have much pleasure in enclosing herewith two copies of above-referred purchase order placed on us for the supply of ASCR Conductor for your perusal.
Now you are requested to kindly furnish performance bond equal to 10% of the total value of purchase order at the earliest for our onward transmission to WAPDA.
In the meantime, thanking and awaiting the pleasure of receiving your performance bond.
For Associated Commercial Agencies.
Encl.: As above. Cc.
1. M/s. Eurometal Ltd., London Encl. One
2. Mr. J. Kopiski, En Encl. One.
The company by its letter dated January 22, 1977, confirmed the said contract and the arrangement for payment of the commission to the petitioning creditor at the rate of 2.75% of the F.O.B. value of the quantity that would be supplied under the said contract. Copy of the said letter is annexed to the petition and is set out hereunder :
January 22nd, 1977.
Messrs. Eurometal Limited,
1, Lambath Hill,
London, EC 4V 4 AS.
Re.: WAPDA, Lahore purchase Order No. DPE/P.O. 3419, dated
15-1-1977, for supply of AC SR conductors.
With reference to the above purchase order, we confirm having agreed to provide you with commission of 2.75% of the F.O.B. value of the quantity that would be supplied. The amount will be remitted to you subject to Reserve Bank of India's approval and realisation by us in India of the export proceeds in full on the successful completion of the contract.
Please return two copies of this letter duly stamped and signed as a token of your acceptance.
For Aluminium Cables & Conductors (U.P.)
It also appears that by a letter dated the 29th of April, 1978, the company intimated the petitioning creditors' said Indian agent as to the particulars of the invoices and the commission amount payable with a tentative date of remission of the same. The said letter is set out here-under:
Shakespeare Sarahi, CABLES 'STALCOND'Calcutta-700016. April 29, 1978.Alcond/WAPDA/P/NDG/78M/s, Industrial Importers Pvt. Ltd.,'Stephen House',34, Dalhousie Square East,Calcutta. Dear Sirs,
With reference to our invoice-wise credit notes dated 18-4-1978, issuedin favour of M/s. Eurometal Limited, 1, Lambath Hill, London, EC 4V 4 AS/U.K. covering their commission amount accrued against our supply ofACSR conductors to Pakistan under P.O. No. 3419/DPE/ADP-IV/2014/1811 dated 15-1-1977, we are pleased to give hereinbelow the remittance schedule subject to the approval of the Reserve Bank of India, received by us well in advance from those dates specified.
InvoiceNo. & date
Commission amount @3.75%of FCB value
Tentative date ofremittance.
Exp./4/77 dt. 26-3-77
Exp./4/77 dt. 26-3-77
Exp./4/77 dt. 28-4-77
15th May, 1978.
Exp./7/77 dt. 9-5-77
Exp./8/77 dt. 9-5-77
Exp./9/77 dt. 9-5-77
30th June, 1978.
Exp./11/77 dt. 13-6-77
Exp./12/77 dt. 24-6-77
16th August, 1978
Exp./10/77 dt. 13-6-77
Exp./13/77 dt. 24-6-77
30th September, 1978.
Exp./14/77 dt. 24-6-77
Exp./15/77 dt. 18-7-77
Exp./16/77 dt. 26-8-77
Exp./17/77 dt. 29-8-77
15th November, 1978.
Exp./3/77 dt. 26-3-77
30th November, 1978.
For Aluminium Cables & Conductors (UP) Pvt; Ltd.,
There were various other relevant correspondence between the parties and the said Indian and Pakistani agents and the buyer, WAPDA, which are annexed to the affidavit-in-opposition of one Rekhab Chand Jain affirmed on the 9th July, 1979, and the affidavit-in-reply, affirmed by one Kishore Himmat Lal Mehta, affirmed on the 30th August, 1979, from which it appears that the relationship between the parties being the petitioning creditor and the company is admitted being an agent for negotiating the said sale with the foreign buyer, WAPDA, of the materials manufactured by the company and the company agreed to pay the commission to the petitioning creditor and its said two agents at specified rates. It will be convenient to set out some of the relevant correspondence which clearly show the admission on the part of the company to pay the commission to the petitioning creditor in terms of the contract between them, through its said Indian and Pakistani agents.
THE CHARTERED BANK
I.I. Chaundrigar Road,
Dated 17th December, 1976.
Director of Procurement (Elecy.),
Pakistan Water & Power Development Authority,
Our letter of guarantee No. 691/276-76
Dated 17-12-1976 Tender No. 2014/CES/
At the request of Messrs. Eurometal Limited, London, we hereby establish in your favour a bond for the amount of US Dollar 186,640.00 (United States Dollars One hundred eighty six thousand six hundred forty only) covering their offer for the supply of ACSR Cables, submitted to you against your above tender enquiry through their agents Messrs. Associated Commercial Agencies, Lahore. In consideration of the above, we hereby confirm that on demand from you in writing, we will release to you the amount of this bond, namely, US Dollar 186,640, should Messrs. Eurometal Limited, London, not fulfil their obligations to you under the terms and conditions of their aforesaid offer. The validity of this bond shall remain valid till the 15th Februar, 1977, or 45 days from the date of tender opening, whichever be earlier, although the same bond can berevalidated, at your request on the understanding that such request will be made in writing latest 5 days from the expiry date herein.
For THE CHARTERED BANK
WE CONFIRM THAT THIS BOND IS COVERED BY THE TERMS
OF OUR BLANKET INDEMNITY Dated 23rd September, 1975.
For and on behalf of COUTINHO, CARO & CO. LTD. And a letter dated the 27th November, 1978, being the annexure to the said affidavit-in-reply at page 18 and is set out hereunder :
ALUMINIUM CABLES & CONDUCTORS (UP)
2-A, Shakespeare Sarani, Calcutta-700016.
Cables: 'STANCOND' PH.: 43-1734, 1785, 1833, 1834, 1933. Telex:
ALCOND CA 7950
Alcond/WAPDA-PNDS/78. November 27th, 1978.
The British Deputy High Commission,
Kind Attn : Mr. R. Roy,
With refererence to your letter dated November 17, 1978, we would like to inform you that a delegation from M/s. Eurometal Ltd., London, visited our office in the recent past to whom we agreed to remit approx. Rs. 50,000 in the month of December, 1978, and balance in due course.
For Aluminium Cables & Conductors (UP) Pvt. Ltd.
47, Hide Road Extension, CAL-27, PH. 45-7193 & 45-7695 Works:
4, Armed Mamoor Street, Liluah, Howrah, PH. 66.2780; IS 396
From the above correspondence which are admitted documents it appears that in no uncertain terms the company agreed to pay commission to the petitioning creditor who was the agent through which the said contract was negotiated and entered into between the said WAPDA and the company for the supply of the said goods. Not only that, it is also clear that the company by its letter dated the 22nd of April, 1978, admitted having issued invoice-wise credit notes in favour of the petitioning creditor covering their commission in respect of the supplies made by the company to WAPDA and also admitted in specific terms the amounts in US dollars being remitted, subject to the approval of the Reserve Bank of India, received by the company. In the said letter also, the tentative date of remittance has also been specified and the total amount appears to be 40,793.35 U.S. dollars for which the said credit notes were issued. In the present winding-up petition, the petitioning creditor in the statutory notice served on the company dated 3rd/4th January, 1979, demanded the said amount after specifying the circumstances under which the amount became payable as commission to the petitioning creditor as agent for negotiating and finalising the contract with WAPDA for the supply of the said goods.
3. Mr. R.C. Nag, appearing with Mr. Sudipta Sarkar for the petitioning creditor, placed the said correspondence chronologically and submitted that the petitioning creditor as the foreign agent of the company in respect of the said contract was entitled to the payment of the said amount subject to the Reserve Bank of India's permission which was to be obtained by the company as admitted in the letter dated the 29th of April, 1978. The company's contention that the said agreement for commission was without consideration has no substance and Mr. Nag referred to paras. 6, 9 and 10 of the winding-up petition and para. 10 of the affidavit-in-reply and submitted that consideration is clearly pleaded and also supported by the correspondence. In fact, the petitioning creditors sponsored for higher rates as would appear from pages 13 and 15 of the winding-up petition. The said contract was negotiated through the Pakistani agent and the Indian agent of the petitioning creditor as would appear from the correspondence. In Clause 9 of the letter dated the 15th of January, 1977, written by WAPDA through the Pakistani agent of the petitioning creditor, it is clearly admitted that the petitioning creditor is the principal of the Pakistani agent and the company's letter to the petitioning creditor dated the 22nd of January, 1977, has specifically referred to the said purchase order dated the 15th of January, 1977, and confirmed the agreement to pay the petitioning creditor's commission at the rate of 2'75% of the F.O.B. value of the quantity that would be supplied and the amount would be remitted subject to the Reserve Bank of India's approval and realisation by the company of the export proceeds in full and successful conclusion of the contract. It also appears that by mutual consent between the company and the WAPDA, the contract was obtained after it was executed leaving a portion unexecuted. It also appears from the letter dated the 11th of December, 1976, that the company requested the petitioning creditors' Indian agent to furnish the bid guarantee on their undertaking to pay the necessary bank charges. The company also tried to dispute the rate of commission in para. 7 of the affidavit-in-opposition at page 3, but Mr. Nag submitted that there is no substance in it as the same has been specifically admitted by the company in its correspondence as hereinbefore stated to be at the rate of 2.75% of the price of the goods supplied under the said contract. The company also took the objection under the F.E.R. Act, but Mr. Nag submitted that there is no ground for disputing the petitioning creditor's claim which is the commission admitted to be payable by the company to the petitioning creditor as hereinbefore stated. Moreover, the company was to obtain the Reserve Bank of India's permission as admitted in their said letter dated the 29th of April, 1978, and for their own default in not obtaining the necessary permission in compliance with the requirements of the F.E.R. Act, they cannot take advantage of their own wrong and default. Further, Mr. Nag referred to the Madras decision in Sreemannarayanamtwthy v. Arjanadu, AIR 1939 Mad 145, where it has been held by the Division Bench of the Madras High Court that the right, which the creditor, who files the insolvency petition against his debtor, is really seeking to exercise, is the right of a creditor who finds his debtor in insolvent circumstances, to have the assets of the debtor administered in insolvency and distributed for the benefit of the creditors as a body. This is a right which is conferred upon the creditors by statute and is not a right arising out of a particular contract of loan between the petitioning creditor and the debtor. The said decision is also noted in the Supreme Court decision in Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., : 8SCR50 , where the Supreme Court approved the proposition that an insolvency petition is a right arising not out of a contract but from the statute and the same principle applies to the present case as admittedly the company has failed to pay the commission due to the petitioning creditor in respect of the said contract and the claim is admitted by the company in the correspondence and, in fact, the company issued the debit notes but remittance was subject to the permission of the Reserve Bank of India which was to be obtained by the company in due course and the company has failed to do so. Therefore, maintaining the present winding-up petition which is a right under the statute to declare a company to be insolvent and liable to be wound up, being unable to pay its debts, is a right under the statute and cannot be affected by the question of permission of the Reserve Bank of India, which the company has deliberately failed to obtain by their own default. Mr. Nag also referred to the Division Bench decision of this court in Bangasri Ice and Cold Storage Ltd. v. Kali Charan Banerjee, : AIR1962Cal613 , where it has been held that in a winding-up petition, the disputes sought to be raised as to the debt due to the petitioning creditor by the company where the said dispute has been manufactured in order to delay or defeat the realisation of the dues of the petitioning creditor and is merely a cloak for the inability of the company to pay its just debt, is a matter which the court would investigate and that will depend on the facts of each, particular case. Here admittedly, the company failed to pay the commission payable to the petitioning creditor after obtaining the necessary Reserve Bank of India's permission for a remission of the same to the petitioning creditor being a foreign agent through whom, the said contract was entered into, as would appear from the previous correspondence referred to in the pleadings in this proceeding. Mr. Nag rightly commented that it was only with a view to maintain the goodwill the said debit notes were issued as alleged by the company is nothing but a ruse and has been set up by the company for the purpose of amusing itself after having admitted its liability for the commission payable to the petitioning creditor for the said contract executed and performed and abandoned a part of it by mutual consent between the company and the WAPDA. Mr. Nag also submitted that there is no bar to a judgment being passed in a foreign currency and in support of the said proposition, he relied on the English Court decision in Federal Commerce & Navigation Co. Ltd, v. Tradax Export SA the Maratha Envoy  2 All ER 41 (CA), where a claim arose out of a charter party as to whether a judgment can be passed for payment of some money expressed in foreign currency. It was held that where a foreign currency was the currency of the contract but the proper law of the contract was English Law, the court had power to give judgment in foreign currency and should do so and, therefore, it was held that the shipowners was entitled to judgment for the demurrage in dollars. Relying on the said decision, Mr. Nag submitted that there is no bar on a court, under the contract between the company and the petitioning creditor as a foreign agent, for judgment in U.S. dollars which was stated in the contract itself and the company also issued debit notes in dollars as would appear from the said letter, dated the 29th of April, 1978, of the company referred to above. Mr. Nag also referred to Section 47 of the F.E.R. Act, and submitted that the company has not produced any document to show that it made any application to the Reserve Bank of India for remittance of the said amount to the petitioning creditor as per their letter dated the 22nd of January, 1977, and 29th of April, 1979. It was the petitioning creditor's duty to produce a document to show that such a permission has been refused and it can be safely presumed that the company has not done anything of that sort by way of application before the Reserve Bank of India for necessary permission to remit the said amount, admitted to be payable to the petitioning creditor under the contract as the commission due to the foreign agent. The petitioning creditor has served notice on the company to produce the necessary documents for F.E.R. Act, permission but the company has failed to produce any document whatsoever and, therefore, it should be inferred that the company has deliberately made no application for payment to enable it to pay to the petitioning creditor and, as such, it must be held that the company is unable to pay its debt and liable to be wound up and at this stage it cannot be said that the present application is an abuse of the process of the court. On the other hand, the disputes sought to be raised by the company is not bona fide and there is no substance in the defence sought to be raised either in law or in fact. In those circumstances Mr. Nag, in my view, rightly submitted that the winding-up petition should be admitted and directions for advertisement should be given.
4. Mr. S.B. Mukherjee, appearing with Mr. S. Baherjee, for the company, submitted that there are three conditions of the contract as set out in para. 7 of the contract, that is (1) approval of the Reserve Bank of India, (2) realisation in India of the export proceeds in full by the company, and (3) successful completion of the contract. Mr. Mukherjee submitted that those conditions are not fulfilled in this case as there is no permission for a remission of the alleged debt due to the petitioning creditor by way of commission as claimed in the winding-up petition and the statutory notice. Secondly, the contract was not fully performed and, therefore, the export proceeds cannot be said to have been realised in full, and, thirdly, the contract was not completed as part of the goods were not delivered by the company. In my view, the said submissions are not only a desperate attempt on the part of the company trying to confuse the real facts and issue before the court, as, from the documents exchanged between the parties, it appears that the company agreed to pay and remit the amount to the petitioning creditor as the agent through whom the said contract with WAPDA was finally entered into by the company for supply of the goods after obtaining permission from the Reserve Bank of India. It was the duty and it was also incumbent under the law, that is the F.E.R. Act and the Rules made thereunder, for the company to make the necessary application for permission for remitting the said amount to the petitioning creditor. The company cannot take advantage of its own default and set up the said plea of absence of permission of the Reserve Bank of India. Secondly, it is admitted that the company has realised the price of the goods supplied in full so far as the portion of the contract was executed and it also appears from the correspondence disclosed in this proceeding, that by mutual consent the balance quantity of the contract between the company and the WAPDA was not delivered and the contract was treated as concluded by performance in part and, therefore, prima facie all the three conditions are fulfilled in this case. Thereafter, Mr. Mukherjee submitted that the statutory notice under Section 434 of the Companies Act, 1956, is defective as the claim is made in dollars and no specific amount in rupee has been stated. In my view, there is no substance in the said contention as the said equivalent amount can easily be determined by calculating the amount at the prevailing exchange rate of dollar in rupee. And lastly, Mr. Mukherjee submitted that the debt is not presently Payable as the permission of the Reserve Bank of India under the F.E.R. Act is necessary. That again is also fallacious as the liability of the petitioning creditor, specifically in unequivocal terms, has been accepted by the company by issuing the credit notes in favour of the petitioning creditor as is recorded in the company's letter dated the 29th of April, 1978, which was payable to the petitioning creditor by remittance to be made by the company after obtaining the necessary permission from the Reserve Bank of India. If the company has failed to apply for the necessary permission and obtain the same in due course, that does not mean that the debt is not presently payable. It is due to the default of the company that such a situation has arisen and it is an elementary principle that nobody can take advantage of his own default. Therefore, it cannot be contended now by the company that the debt is not presently payable having not produced any document before this court to show that it made an application before the RBI under the F.E.R. Act for the remittance of the commission payable to the petitioning creditor, under the said contract between the parties, which is admitted. It is evident that the said plea raised by the company is not only frivolus, fallacious but lacks in commercial morality and involves a question of international commercial transactions, having impact on the public interest which the court should always zealously safeguard for upholding the national prestige in the international commercial transaction. Lastly, Mr. Mukherjee submitted that there is no allegation of insolvency in the winding-up petition but, in my view, that is also not a correct reading of the winding-up petition which in no uncertain terms in para. 18 has alleged that the company is in involved circumstances and it is just and equitable to wind up the company and it is also admitted that the notice under Section 434 of the Companies Act, 1956, has been duly served on the company and in spite of such service, the company has neither taken any step for making payment of the amount after obtaining the necessary permission of the Reserve Bank of India nor produced any material before this court that it has ever applied for the Reserve Bank of India's permission which has been refused. It also appears that the company has not given any reply to the statutory notice served on the company by the petitioning creditor's advocate-on-record being the letter dated 3rd/4th January, 1979, being annex. F to the winding-up petition.
5. In these circumstances, I am of the view that the company has not raised any bona fide dispute to the claim of the petitioning creditor and, there is no bar in presenting this winding-up petition by the petitioning creditor as the debt due to the petitioning creditor is admitted by the company and the company itself has created the difficulty by its own default in not obtaining the necessary permission of the Reserve Bank of India as it had specifically undertaken, in the correspondence mentioned hereinbefore, being the letters dated the 22nd of January, 1977, and 29th of April, 1978, addressed to the petitioning creditor and its Indian agent respectively. The amount of the debt due is admitted and because the same is expressed in dollars, that does not convert an undisputed debt to a disputed debt on bona fide ground and, lastly, it appears that the company has performed the contract and abandoned a portion of the contract by mutual consent of the WAPDA and there is no dispute that the company has realised the amount from the WAPDA against the letter of credit opened by WAPDA in respect of the said contract which was admittedly negotiated and entered into through the agency of the petitioning creditor and its Pakistani and Indian agents, as would appear from the correspondence set out before. Therefore, the present winding-up petition being a statutory right for the winding-up of an insolvent company which is Unable to pay its debt in spite of statutory notice being served for public interest, there is no bar in entertaining the winding-up petition. The winding-up petition is not ordinarily a case for realisation of the dues, even a suit for realisation is maintainable, but no decree can be passed and executed in favour of a foreigner without obtaining the permission of the Reserve Bank of India. Therefore, at this stage, the question of permission of the Reserve Bank of India for the payment of the debt due to the petitioning creditor cannot and does not arise. That will only arise if the company is wound up and the assets of the company are realised by the liquidator in the administration of the company in winding-up. Therefore, there is no substance or any merit in the contentions raised by the respondent-company in this winding-up petition and, at this stage it cannot be said that the winding-up petition is an abuse of the process of the court. On the other hand, the company appears to be lacking in commercial morality and infringing the norms of international commercial transactions and trying to take advantage of its own default. Therefore, it must be held that the company is unable to pay its debts at this stage.
6. In the result, the winding-up petition is admitted. The same is to be advertised once in Statesman, once in Basumati and once in Calcutta Gazette but such advertisement not to be published before April 16, 1980, and the matter to appear in the list on the 27th of May, 1980.