RADEXPO AG vs JAYNA TIME INDUS. LTD.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 17th October, 2023
Date of decision: 4th January, 2024

+ CO.PET. 182/1999

RADEXPO AG ….. Petitioner

Through: Mr. Abhishek Kumar Rao and Mr. Shailesh Suman, Advs. (M. 9910186556)

versus

JAYNA TIME INDUS. LTD. ….. Respondents
Through: Mr. T.K Ganju, Sr. Advocate with Mr. C S Gupta, Advocate (M: 9871980107).
Ms. Malvika Trivedi, Senior Advocate with Mr. Jawahar Raja, Ms. Sujal Gupta, Ms. Aditi Saraswat, Mr. Parth Goyal and Ms. Varsha Sharma, Advs. for R- Amit Jain, Anuj Jain, Nidhi Jain, and Kusum Lata Jain.
CORAM:
JUSTICE PRATHIBA M. SINGH

JUDGMENT

Prathiba M. Singh, J.
1. The present petition has had a long and chequered history. The Petitioner – Radexpo AG, a Swiss company has filed the present winding up petition against the Respondent – M/s Jayna Time Industries Limited under Section 433(1) (e) read with Section 450 of the Companies Act, 1956.

Brief Facts
2. The case of the Petitioner is that the Respondent used to place orders for purchase of raw material, watch components, tools and various other spares parts from the Petitioner. The said material was imported by the Respondent from the Petitioner. There was a continuous chain of transactions between the parties and, invoices were raised by the Petitioner which were due and payable within 60 days.
3. The case of the Petitioner is that certain invoices from the years 1994, 1995 and 1996 were not paid by the Respondent in the usual course of business. In view thereof, the Petitioner sent legal notice dated 31st December, 1998 to the Respondent claiming 387,241/- Swiss Francs (hereinafter, ‘SFR’) as payments for the unpaid amounts as also the interest thereon. The Respondent vide reply dated 27th January, 1999 disputed the said amount claimed by the Petitioner.
4. Thereafter, the Petitioner filed the present petition seeking winding up of the Respondent company claiming that an admitted amount of SFR 345,149.30/- is due and payable. As per the statement of account filed with the petition, the said amount is based on various invoices which were unpaid for a sum of SFR 2,86,846/- and the interest thereon i.e., SFR 58,303.30/- .The petition was filed on the basis that none of these amounts have been paid, though they have been admitted and the receipts of goods is not denied.
5. Notice was issued in this petition on 25th May 1999. On the said date an order was also passed directing that the Respondent Company to not transfer, alienate or otherwise part with any of its fixed assets other than in the normal course of business.
6. Thereafter, vide order dated 22nd May, 2000, this Court directed the statement of accounts to be filed by the Respondent. The said order reads as under:
“CP No. 182/99 & CAs 720-721/99
The respondents are directed to file a statement of accounts either indicating as to what are the amounts due and payable to the petitioner company and/or reconcile a statement to indicate that no amounts are payable.
List on 25th May, 2000.”
7. Pursuant to the said order, an affidavit dated 25th May 2000 came to be filed by the Respondent by way of a reply to the petition. On the said date the Respondent was also directed to deposit Rs. 15 lakhs with the ld. Counsel for the Petitioner. The order reads:
“CP No. 182/99 & CA Nos. 720-721/99
The counsel for the respondent has filed statement of accounts by way of an affidavit. He states that the affidavit is ready and the same shall be filed during the course of the day. Advance copy be supplied to the counsel for the petitioner.
To establish his bonafide, the respondent shall bring in court a sum of Rs.15 lacs equivalent Franc to any Swiss Bank. After getting the permission from the Reserve Bank of India, the respondent’ shall deposit the said amount with Vaish Associates.
The Managing Director of the respondent’ company shall be present in court on the next date of hearing.
List on 1st August, 2000.”
8. On 1st August 2000, the Court recorded that in paragraph 10 of the affidavit dated 25th May 2000, the Respondent had admitted the alleged liability of the amount as stated in SFR. The statement of the Respondent was also recorded to the effect that the Respondent company had net assets of Rs. 4,34,00,918.81/- , reserves and surpluses to the tune of Rs. 22,83,469.56/- and that no purpose would be served by winding up such a company on the basis of the present petition. The Court further recorded that due to paucity of funds, Mr. Vinod Kumar Jain, director of the Respondent company could not deposit the sum of Rs.15 lakhs. An undertaking was given on the said date that he would deposit the sum of Rs.15 lakhs with the firm Vaish Associates on or before 16th September 2000. Accordingly, orders for winding up were deferred. The said order dated 1st August, 2000 reads as under:
“The petitioner has filed this petition for winding up of the respondent company. By order dated 22.05.2000 the respondent was directed to file a statement of accounts indicating as to what are the amounts due and payable. (Accordingly the respondent filed an affidavit on 25th May, 2000. In paragraph 10 of the said affidavit the respondent has admitted the alleged liability of the amount as stated in Swiss Francs). In the reply to the company petition the respondent has stated that the respondent is a working unit having fixed, moveable and immovable assets which are more than the amount claimed in the company petition. It is also stated that the company at present has the net assets of Rs.4,34,00,918.81 and that its reserves and surplus are to the tune of Rs.22,83,469.56. It is contended that no purpose would be served by winding up such a unit on the basis of the present petition. By order dated 25th May, 2000, this Court directed that in order to establish his bonafides the respondent should deposit a sum of Rs.15 lakhs with Vaish Associates, the attorney of the petitioner and the Managing Director of the respondent company was directed to be present in Court on the next date i.e. 1st August, 2000.
In compliance with the order dated 25.5.2000 Mr. Vinod Kumar Jain, Director of the respondent company is present in Court. He submits that the sum of Rs.15,00,000/- could not be deposited with Vaish Associates as directed by this Court on 25th May, 2000 due to paucity of funds and that efforts are being made to raise the funds even by disposing of part of the property of the company. He prays for that a further period of four weeks to deposit the said sum of Rs.15,00,000/-. He confirms the statement in the reply filed by the respondent that the respondent company is a working unit having fixed, moveable and immovable assets which are more than the amount claimed in the present petition and that the company at present has the net assets of Rs.4,34,00,918.81 and that its reserves and surplus are to the tune of Rs.22,83,469.56. Mr. Vinod Kumar Jain undertakes that irrespective of any further developments or other proceedings in future, the respondent will deposit the sum of Rs.15,00,000/- with Vaish Associates on or before 16th September, 2000.
Having regard to the facts and circumstances of this case and in view of the statements made and undertaking given by Mr. Vinod Kumar Jain today in Court, I am inclined to defer orders for winding up of the company and to grant further time to the respondent to comply with the order dated 25.5.2000 by depositing the sum of Rs.15,00,000/- with Vaish Associates. The said amount shall be deposited with Vaish Associates on or before 16th September, 2000.
On the next date, the respondent shall suggest the schedule for payment of the balance amount due to the petitioner.
Mr. Vinod Kumar Jain, Director of the Company shall be personally present in Court on the next date.
Renotify on 18th September, 2000.”
9. Again on 18th September 2000, it was noticed by the Court that the amount of Rs.15 lakhs was not deposited. The justification sought to be given by Mr. Vinod Kumar Jain for the non-deposit was that because there was an embargo imposed by BIFR, on the Company, from paying any sums of money to the creditors, he was unable to pay. This explanation was not accepted by the Court which observed as under:
“I shall deal with the said application C.A. 1326/2000 separately. However, for the purpose of the winding up petition I may observe that in Paragraph 12 of the said application, it is stated that respondent company was unable to deposit the amount of Rs.15,00,000/- in terms of order dated 1st August, 2000 as there is an embargo on the respondent company to pay sums of money to the creditors. The said statement is totally without bonafides. In the reply filed by the respondent and in the statements made by Mr. Vinod Kumar Jain, the definite stand was that the company was financially sound and was able to repay the debt of the petitioner. Respondent only sought time to make payment. When the possibility of the respondent approaching BIFR with a view to frustrate this petition, was pointed out by the counsel for the petitioner Mr. Vinod Kumar Jain denied it and undertook to deposit the amount irrespective of any further developments or other proceedings in future. After doing so, the respondent could not have approached the BIFR and at any rate the respondent and particularly Mr. Vinod Kumar Jain could not have refused to pay the sum of Rs.15 lakhs as per the undertaking given to the Court. Even if the respondent was constrained to make a reference under Section 15 of SICA, nothing prevented the respondent from paying the amount. Section 22 of SICA does not operate as a bar against honouring the undertaking given to this Court. Moreover, the respondent could have paid the amount with the consent of the BIFR. In view of the undertaking given to this Court, the respondent had a duty to seek such consent of the BIFR and Sec. 22 of SICA enables the respondent to seek such consent. From the conduct of the respondent it is absolutely clear that the respondent was taking this Court for a ride. The conduct of Mr. Vinod Kumar Jain in giving an undertaking to the Court to pay Rs.15 lakhs as already directed and getting the order of winding up deferred in view of the undertaking and thereafter filing a reference before the BIFR under Section 15 of SICA and pleading before this Court that in view of the said reference, the respondent company cannot honour the undertaking given to this Court, amounts to a deliberate, wilful and malafide attempt to interfere with the course of justice. It is clear that Mr. Vinod Kumar Jain acted in a dishonest manner to frustrate the proceedings before this Court. It is to be noted that while the undertaking was given to this Court on 1st August, 2000, the reference under Section 15 of SICA was made according to the counsel for the respondent only on 4th September, 2000 i.e. a few days prior to the last date for depositing the amount.
In these circumstances, I am prima facie, satisfied that Mr. Vinod Kumar Jain has committed Contempt of Court and is liable to be proceeded against under the provisions of the Contempt of Courts Act. However, I am inclined to grant him to give one more opportunity to purge the contempt by depositing the amount of Rs.15 lacs either personally or from the accounts of the company within a week from today i.e. on or before 25th September, 2000, action will be taken against Mr. Vinod Kumar Jain for committing Contempt of Court.
Renotify on 27.09.2000 for further proceedings.
Mr. Vinod Kumar Jain shall be personally present in Court on that date.
Mr. Vinod Kumar Jain who is present in Court has been apprised of this order and the consequences have been explained to him.
………”
10. Accordingly, Mr. Vinod Kumar Jain was prima facie held guilty of contempt but was again given an opportunity to purge himself from contempt by depositing the amount of Rs.15 lakhs and he was directed to be personally present in Court on the next date of hearing.
11. Thereafter, on 27th September 2000, cheques for the amount of Rs.7 lakhs and Rs.8 lakhs were handed over by Mr. Vinod Kumar Jain and the matter was then renotified.
12. On 7th February 2002, an amount of Rs.15 lakhs which was deposited with Vaish Associates was directed to be released in favour of the Petitioner in CA 171/2002. Thereafter, the petition was then adjourned sine die on the said date. The order dated 7th February, 2002 is as under:
“ Notice.
Ms. Manisha Dhir accepts notice and has no objection to allowing of the prayers in this application. Accordingly, it is directed that a sum of Rs.15,00,000/- which was deposited with Vaish Associates be released in favour of the petitioner namely RADEXPOAG, Switzerland.
The application stands disposed of
CP 182/1999 & Cas 1326/2000
Since the matter is pending before the BIFR, the matter is adjourned sine dine with liberty for revival.”
13. On 21st February 2005, the matter was again called and notice was issued to the parties. It was noticed that the Board for Industrial and Financial Reconstruction (BIFR) had admitted a reference in the matter.
14. In the meantime, while the matter continued to remain pending before the BIFR, the Sick Industrial Companies Act, 1985 (SICA) was, itself, repealed. The next relevant order in this case is order dated 18th April 2017 when the matter was again revived before this Court.
15. On 4th December 2017, the Court passed a detailed order directing the winding up of the Respondent Company by appointing a provisional liquidator. The petition was admitted on the ground that the debt in the present case was undisputed. The Court observed that the only dispute was of quantification. Accordingly, the petition was admitted by the Court. The observations in the said order are relevant and are set out below:

“3. Notice under section 433(e) & (t) and 434 of Act was sent on 31.12.1998 pointing out that the respondent company owes to the petitioner SFR 387,241.30. The respondent replied to the aforesaid legal notice disputing the liability on 27.1.1999.
8. Learned senior counsel appearing for Nirmal Jain Group in Co.A.(SB) 13/2010 and learned counsel appearing for Raj Jain Group strongly submitted that the Vinod Jain Group does not and cannot represent the respondent company as they have a minority holding having only 12.5% shares. Learned senior counsel appearing for Nirmal Jain Group and learned counsel appearing for Raj Jain Group have stated that it is in the interest of the company that it be wound up and the assets be sold and the proceeds be distributed after paying off the creditors.
10. I may first have a look at the order of this court dated 18.9.2000. This court by the said order noted that on 22.5.2000 the respondent was directed to file a Statement of Accounts either indicating the amounts due and payable to the petitioner company or reconcile a statement indicating that no amounts are payable. Mr.Vinod Kumar Jain had filed an affidavit on 25.5.2000 wherein in paragraph 10 he admitted the liability of the outstanding amount which is stated in Swiss Francs. The Court further noted that on 25.5.2000 this court had directed that in order to establish the bona fide the respondent should deposit a sum of Rs.15 lacs with Vaish Associates, the attorney of the petitioner. On the next date of hearing Mr.Vinod Kumar Jain appeared and undertook to the court that necessary sum of Rs.15 lacs would be deposited on or before 16th September 2000. He also submitted that irrespective of any future development or other proceedings in future the said sum of Rs.15 lacs would be deposited with Vaish Associates. On the assurance of Mr.Vinod Kumar Jain this Court had deferred winding up of the respondent company and granted time to the respondent to deposit the slim of Rs.15 lacs.
12. As far as the present petition is concerned, I may note that in para 10 of the affidavit dated 25.5.2000 that was filed pursuant to order of the court dated 22.5.2000 the respondent has stated as follows:-
“10 That the Respondent even requested the Petitioner to settle the disputes whenever he visits India next time as the conversion rate has to be fixed/settled first so that the payment could be made accordingly. However at present the amount which has been raised as outstanding against the Respondent in the present petition is correct only to the extent that they have been mentioned in Swiss Franc but as far as the amount payable in Indian Currency it is of disputed nature because at the time of import what the invoice prices mentioned and the subsequent devaluation of Indian Currency when the goods reached in India is not settled between the parties till date hence the outstanding amount as mentioned by the Petitioner in the present winding up petition in Indian currency is not admitted due to the above said dispute.”
13. It is clear that the only dispute is as to whether the amount which the petitioner company claims is to be paid in Indian Rupees or in Swiss Francs.
14. According to learned counsel for the petitioner, the petitioner is a Swiss company and payments have to be made in Swiss Francs. The conversion rate would be applicable on the date the respondent tenders payment. On the other hand the case of Mr. Vinod Jain on behalf of the respondent company is that the payments would have to be based on the conversion rates on the date of the invoice. However, there is no attempt made to show what is the material difference between the conversion rates in Swiss Francs as compared to the date of the invoice and today ‘s date.

18. The debt in the present case is undisputed. Only dispute is of quantification. Keeping in view the undisputed facts that there are confirmed dues payable to the petitioner company I admit the present petition. The Official Liquidator attached to this court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers ·Statesman’ (English) and ‘Veer Arjun ‘ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum Rs75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company.”

16. A review petition was also filed by the Respondent against the order of Winding up, which was dismissed by the Court on 17th April, 2018.
17. An SLP was filed by Mr. Vinod Kumar Jain challenging the initial order of winding up dated 4th December 2017 and the order dismissing the review dated 17th April 2018. In the said SLP being SLP (Civil) No. 27945/2018 titled Vinod Kumar Jain v. Jayana Time Industries Limited &Ors. vide order dated 2nd November 2018, the Hon’ble Supreme Court stayed the winding up of the Respondent subject to deposit of sum of Rs.1.25 crores. The said amount was to remain in an interest bearing fixed deposit. The relevant part of the said order is as under:
“Delay condoned.
Applications for exemption from filing certified copy of the impugned order and from filing official translation are allowed.
Permission to file additional documents is granted.
Issue notice, returnable in six weeks.
Order(s) of the High Court dated 94.12.2917 passed in Company Petition No. 182/1999 and 17.94.2918 in Company Application NO.364/2918 shall remain stayed subject to deposit of a sum of Rs .1. 25 crores in the Registry of this Court within two weeks from today. The said amount, if deposited, shall be invested/kept in an interest bearing Fixed Deposit Receipt initially for a period of three months and which will be renewed from time to time.”
18. Vide order dated 7th February 2020, the Supreme Court directed release of the said amount of Rs.1.25 crores along with the accrued interest. The said order reads:
“Learned counsel for the parties are agreeable to explore the possibility of mediation and further agree that Justice Badar Durrez Ahmed, former Chief Justice of High Court of Jammu and Kashmir be appointed as the mediator. The mediator will fix his own fee. The parties will approach the mediator for fixing the dates for mediation.
One aspect which is pointed out by the responent- Creditor Radexpo AG is that a sum of Rs.1,25,00,000/- (Rupees one crore twenty five lakhs) has been deposited in this Court in pursuance to the order dated 2nd November, 2018 and even though the amount claimed by the creditor is more, atleast that amount be released to the creditor. Both the sides are agreeable to this course of action.
We thus direct that the amount deposited in this Court which is kept in FDR be released to the creditor on the period of current FDR expiring along with interest accrued thereon.
List after the report of the mediator.
Learned creditor may approach the petitioner to facilitate transfer of the amount as the creditor is based in Switzerland.
The amount is being released without prejudice to the rights and contentions of the parties.”
Pursuant to the said order, an email dated 2nd February 2021 was also sent by the Registry of the Supreme Court to the Petitioner recording that an amount of SFR 170,587.11/- (Rs.1.39 crores) was transmitted to the Petitioner. The said amount includes the Rs.1.25 crores deposited by the Respondent as also the interest accrued thereon.
19. Parallelly, in CO A.(SB) No. 13/2010 which is a dispute amongst the management of the Respondent Company, the order dated 11th July, 2018 came to be passed wherein, the appeal was permitted to be dismissed as withdrawn, in view of the winding up order dated 4th December, 2017. The said order also came to be challenged before the Hon’ble Supreme Court and finally both the SLPs were disposed of vide order dated 26th July, 2023. The said order is extracted herein below:
“During the course of hearing, learned Senior Advocate appearing on behalf of the appe1lant(s), on instructions from Mr. Amit Jain, who is the legal heir of Vinod Kumar Jain (Dead) and is present in Court, states that the appel1ant(s), without prejudice to their rights and contentions, will deposit Rs.50,00,000/- (Rupees Fifty Lakhs Only) in the High Court of Delhi. The amount will. be deposited within a period of fifteen days from today, and converted into an interest bearing Fixed Deposit Receipt (FDR) for a period of six months with an auto renewal clause . The deposit with interest would abide by the decision of the High Court .
The aforesaid deposit will be for the purpose of resolving and settling the accounts with M/s Radexpo AG, who is respondent No . 1 in the Civil Appeals arising out of SLP (C) No . 29617-29618 of 2018 . It is to be noted that during the pendency of the appeals, payments have been made to M/s Radexpo AG, but there is some dispute as to the total amount due and payable on account of conversion .
In case, any additional/more amount is found due and payable to M/ s Radexpo AG, the appe1lant (s) would make the said payment, failing which appropriate order may be passed
We are informed that respondent No . 1 M/s Jayna Time Industries Limited has various movable properties which have substantial market value . It is also stated that other claimants, including secured creditors, have been paid or no claims have been received by the official liquidator .
In view of the aforesaid factual position, we set aside the order dated 04.12.2017 admitting the company petition and appointing the provisional liquidator . Question of reimbursement of costs and expenses incurred by the provisional liquidator will be examined and decided by the High Court . Any other aspect may also be decided .
In view of the order passed, we also set aside the order dated 11 . 07 . 2018 passed in Company Appeal (SB) No .13/2010, holding that the order passed by Company Law Board on 23 .12.1999 is not enforceable in view of the order dated 04 . 12.2017 admitting the company petition.
Company Appeal (SB) No.13/2010, will be decided afresh. All issues and contentions are left open.
To cut short delay, the parties are directed to appear before the High Court of Delhi on 24.08.2023 . Recording the aforesaid, the appeals are allowed and disposed of in the aforesaid terms.
Pending application(s), if any, shall stand disposed of.”
20. Pursuant to the said order of the Hon’ble Supreme Court, a sum of Rs.50 lakhs has now been deposited by the Respondent with the Registrar General of this Court. As per the above order of the Hon’ble Supreme Court, the winding up order has been set aside. The company appeal is also to be decided afresh along with issues relating to costs incurred by the Provisional liquidator which are to be determined.
21. In this background, the only question that remains in the present winding up petition is as to what is the amount payable by the Respondent to the Petitioner.
Submissions
22. Mr. Rao, ld. Counsel for the Petitioner submits as under:
(i) that the amount of SFR 345,193.30/- is the admitted amount and the same has not been denied by the Respondent in its reply;
(ii) that the total amount received by the Petitioner is to the tune of SFR 170,587/- plus SFR 45,871/-. In addition, the sum of Rs.50,00,000/- deposited by the Respondent pursuant to the order dated 26th July, 2023 passed by the Hon’ble Supreme Court shall have to be converted into SFR and transmitted to the Petitioner;
(iii) that costs of approximately SFR 100,000 are liable to be paid by the Respondent in view of the fact that the invoices themselves made it clear that they are payable within 60 days failing which, the interest would be liable to be charged by the Petitioner.
23. Ms. Trivedi, ld. Sr. Counsel for the Respondent submits as under:
(i) that the only admitted amount would be the amount of the invoices. The remaining amount cannot be considered as an admitted amount. Thus, the interest of SFR 58,303 is not payable and the admitted payable amount is SFR 286,846;
(ii) that from time to time, amounts as directed by the Hon’ble Supreme Court as also this Court have been deposited by the Respondent;
(iii) that the Petitioner has received SFR 170587/- , SFR 56,433/- and Rs. 50 Lakhs;
(iv) that on the basis of the computation chart attached with the affidavit dated 22nd August, 2023, after adjustment of Rs.15 lakhs as also Rs.1.39 crores which has been remitted to the Petitioner and taking into account the amount Rs.50 lakhs, the balance payable is Rs.1,98,333/-. No other amount would be due and payable in terms of the admitted amount.
Analysis and Findings
24. The above narration of facts and submissions would show that there are two issues in the present case:
(i) the dispute of the amount of SFR 10,562/- that was paid out of the sum of Rs.15 lakhs that was deposited with Vaish Associates.
(ii) the question of calculation of the amount payable by the Respondent to the Petitioner
25. Insofar as the dispute of the amount of SFR 10,562/- is concerned, vide order dated 25th May 2000 this Court had directed the Respondent to deposit Rs.15 lakhs to the Petitioner. Pursuant thereto, in the order dated 27th September, 2000 it was recorded that two cheques – one dated 27th September, 2000 for a sum of Rs. 7 lakh and the other dated 5th October, 2000 for a sum of Rs. 8 lakhs drawn on Punjab National Bank were handed over by Mr. Vinod Kumar Jain to the ld. Counsel for the Petitioner. The relevant part of the said order is as under:
“In compliance with the order dated 18.9.2000, Mr. Vinod Kumar Jain is present in Court. He states that inspite of his earnest efforts, he could not deposit the amount of Rs.15 lakhs with Vaish Associates within one week from 18.9.2000. He further states that he has brought two cheques- one dated 27.9.2000 for a sum of Rs.7 lakhs and the other dated 5.10.2000 for a sum of Rs.8 lakhs drawn on Punjab National Bank. He assures this Court that the above mentioned cheques will be honoured by the bank on presentation.
Since Mr. Vinod Kumar Jain has brought the above mentioned cheques with the assurance that the same will be honoured by the bank on presentation, I am inclined to defer further orders regarding the question of initiating action against Mr. Vinod Kumar Jain for committing Contempt of Court. Let Mr. Vinod Kumar Jain hand over the cheques the counsel for the petitioner.
The above mentioned cheques have been handed over to the counsel for the petitioner.
Renotify on 11.10.2000.”
26. Thereafter, vide order dated 7th February, 2002, ld. Counsels for the Petitioner i.e. Vaish Associates were directed to deposit the sum of Rs. 15 lakhs deposited with them to the Petitioner. The relevant part of the said order is as under:
“Ms. Manisha Dhir accepts notice and has objection. to allowing of the prayers in this application.
Accordingly it is directed that a sum of Rs.15.00.000/-which was deposited with Vaish Associates be released in favour of the petitioner namely RADEXPOAG, Switzerland.
The application stands disposed of.”
27. Ld. Counsel for the Petitioner urges that only SFR 45,871/- have been paid out of the said Rs.15 lakhs instead of SFR 56,433/-. However, ld. Counsel has produced no document or pleading to that effect. Ld. Sr. Counsel for the Respondent submits that SFR 56,433/- have been paid to the Petitioner based on the foreign exchange rate on the date of remittance. Accordingly, in view of the order sheets as also the lack of pleadings on part of the Petitioner, it is taken that SFR 56,433/- is paid by the Respondent to the Petitioner. Insofar as the question of calculation of the amount payable by the Respondent to the Petitioner is concerned, at this stage is concerned, the same is now determined.
28. The claim in the petition is for a sum of SFR 345,149.30/- which it claims to be the undisputed amount. It is also stated that the Petitioner does not seek any payment of interest as stated in the notice dated 31st December, 1998. The case of the Petitioner is that this amount is the admitted amount. The relevant paragraphs of the petition are extracted below:
“6.(i) The Respondent from time to time placed upon the Petitioner orders for the purchase of raw material, watch components, tools and other spares. The said material was being imported by the Respondent from the Petitioner. As a result of the aforesaid transactions which had been going on for a number of years certain amounts became due and payable. The details of the invoices and the monies due and payable against the goods supplied are annexed hereto and marked Annexure-P/1.
The Petitioner is claiming a sum of SFR 345,149.30 as a sum undisputably due and payable. The Petitioner is not claiming a sum of SFR 42,092.00 as claimed under the notice dated 31.12.1998 since the said amount pertains to interest and does not constitute admitted liability within the meaning of section 333 and 334 of the Companies Act, 1956. However, the Petitioner reserves the right to claim the same if so advised in appropriate proceedings.
……
It is further submitted that the contents of this para are itself contractor. On the one hand the petitioner is claiming SFR 345,149.30 as an undisputed sum whereas his own statements of account which has been annexed as annexure P-1 on page 27, shows the principal amount as SFR 286,846/- which clearly shows that the petitioner himself is not sure about the principal amount being a disputed amount.”

29. On the other hand, Respondent in its affidavit dated 22nd August, 2023 and affidavit of calculation states that only the principal amount of SFR 2,86,846 is payable and not SFR 345,149.30. The same is also averred by ld. Sr. Counsel for the Respondent. The relevant paragraph of the affidavit dated 22nd August, 2023 is as under:
“4. That the invoices payable as per the Petitioner has been annexed to the present Company Petition as Annexure P1 @ page 27-68 (PDF pages 35-76), where the amount SFR 286’846 (Swiss Francs) is the total value of the unpaid invoices as per the Petitioner on page 28 (PDF page 36), which would be SFR 206’129 (Swiss Francs) (as last 8 invoices amounting to 42’378 SFS have already been paid in the regular course of business) + FRF 262’960 (French Francs) + DM 17’620 (Deutschmark) if taken in invoiced currencies, as given in Annexure P6 @ page 75 (PDF page 83) of the present Company Petition.”
30. However, an affidavit dated 25th May, 2000 has been filed by Mr. Vinod Kumar Jain who was the director of the Respondent company where it is admitted that payment of certain invoices is pending. In paragraph 10 of this affidavit, it is admitted as under:
“10. That the Respondent even requested the Petitioner to settle the disputes whenever he visits India next time as the conversion rate has to be fixed/settled first so that the payment could be made accordingly. However, at present the amount which has been raised as outstanding against the Respondent in the present petition is correct only to the extent that they have been mentioned in Swiss Franc but as far as the amount payable in Indian currency, it is of disputed nature because at the time of import what the invoice prices mentioned and the subsequent devaluation of Indian Currency when the goods reached in India is not settled between the parties till date hence the outstanding amount as mentioned by the Petitioner in the present winding up petition in Indian currency is not admitted due to the above said dispute”

31. Clearly, in the said affidavit, Mr. Vinod Kumar Jain admits that the amount which has been raised in the present petition is correct to the extent that it have been mentioned in SFR. A conjoint reading of the petition, along with the affidavit dated 25th May, 2000 leaves no manner of doubt that the amount in SFR i.e. SFR 345,149.30/- stands admitted by the Respondent.
32. The question that now remains is as to how the amount that is payable by the Respondent is to be computed.
33. The total payments made till date by the Respondent owing to various Court orders are as under:
(i) First payment: The sum of Rs.15 lakhs deposited pursuant to order
dated 25th May 2000 and 18th September, 2000 on 27th September, 2000. The said amount was released vide order dated 7th February, 2002;
(ii) Second payment: The sum of Rs.1.25 crores deposited pursuant to
order dated 2nd November, 2018 passed by the Hon’ble Supreme Court. This was released to the Petitioner on 7th February, 2020 along with the accrued interest;
(iii) Third payment: The sum of Rs.50 lakhs deposited with the worthy
Registrar General pursuant to order dated 26th July, 2023 passed by the Hon’ble Supreme Court. This amount is lying in an interest-bearing account.
34. The claimed amount is in SFR, thus the above amounts which were deposited in Indian rupees have to be converted into SFR in order to compute the outstanding amount. In the present case, due to the long pendency of the dispute, the Petitioner has lost out on the interest which it would have otherwise earned. The foreign exchange fluctuation has also led to a higher amount of money being required to be deposited by the Respondent in order to ensure that the payment is made in SFR. Thus, despite the varying submissions which have been made by the Petitioner and the Respondent, the Court takes the view that the amount due deserves to be computed keeping both issues in mind i.e., loss of interest payments to Petitioner and substantial currency fluctuation requiring the Respondent to pay higher amounts. After considering the conduct of the Respondent, which, despite admitting the amounts due did not enter into proper negotiations and make payments, also bearing in mind the prima facie findings of contempt given against the Respondent, the amounts due are computed in the following manner:
(i) the amounts deposited in Rupees by the Respondent are liable to be converted into SFR as per the foreign exchange rate prevalent on the date when the Respondent had deposited the amounts;
(ii) the interest on the deposit made by the Respondent pursuant to the orders passed by the Hon’ble Supreme Court would accrue in favour of the Petitioner;
(iii) the outstanding amount payable by the Respondent shall be calculated after deducting the amount in SFR from the amount claimed in the petition.
35. In view thereof, the payments made by the Respondent as converted into SFR are as under:
(i) First payment: Rs.15 lakhs is SFR 52,348 (October, 2000 conversion rate)
(ii) Second payment: Rs.1.25 crores is SFR 152,406.87 (February 2021 conversion rate)
(iii) Third payment: Rs.50 lakhs is SFR 52,348.9 (July, 2023 conversion rate)
36. Thus, the total amount which has been paid to the Petitioner is SFR 257,103.77. Thus, the amount payable by the Respondent is as under:
Admitted Amount
Amount paid:
Balance amount payable
SFR 345,149.30
SFR 257,103.77
SFR 88,045.53
37. The interest which has been accrued on the deposits made by the Respondent i.e. on the sum of Rs.50 lakhs deposited pursuant to order dated 26th July, 2023 passed by the Hon’ble Supreme Court and on the sum of Rs.1.25 crores deposited pursuant to order dated 2nd November, 2018 passed by the Hon’ble Supreme Court is remitted to the Petitioner and is excluded from the calculation as no interest is being awarded in favour of the Petitioner, in order to balance the interests of the parties in view of the factors mentioned above i.e., conduct and currency fluctuation.
38. The Petitioner has faced a long journey in order to recover the admitted dues. Throughout the submissions, there has never been any dispute on the fact that certain invoices have remained unpaid. The issue in the present case was one of supply of goods and payments for the same. The Respondent ought not to have dragged this matter along for such a long period. It required, repeated Court orders and challenges till the Supreme Court for the matter to reach some closure at this stage. It is also unclear as to whether the Respondent would still admit to pay the amount due or not. Under such circumstances, this Court is of the opinion that the Petitioner having lost out on the interest and having incurred substantial legal costs, is entitled to costs in the present petition which are quantified at SFR 20,000. Therefore, the total payable amount in SFR is as under:
i) Due amount: SFR 88,045.53/-
ii) Cost: SFR 20,000
iii) Total payable amount: SFR 108,045.53/-
iv) Total amount payable in Rs. 1,05,88,461.94/- (Exchange rate: 1SFR = 98 Indian Rupees as per January 2024 conversion rate)
39. The said amount shall be paid by the Respondent by 1st March, 2024. If the amount is not paid by the said date, 6% simple interest would be liable to be paid from 1st March, 2024 till the date of payment.
40. The amount of Rs.50,00,000/- which is lying with the Registrar General of this Court along with the interest accrued thereon shall be released in favor of the Petitioner. The bank account details shall be furnished by the Petitioner to the Registry within one week. If any TDS is to be deducted on the interest component, the same shall be deducted in accordance with law.
41. The petition is disposed of in these terms.
42. All pending applications are also disposed of.
PRATHIBA M. SINGH
JUDGE
JANUARY 04, 2024
Rahul/kt

CO.PET. 182/1999 Page 2 of 2