In re Anshal Transport Services Ltd [1997] FJHC 138; Hbe0041j.97s (19 September 1997)

Fiji Islands - In re Anshal Transport Services Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

WINDING UP ACTION NO. 0041 OF 1997

IN THE MATTER
of Anshal Transport Services Limited

AND

IN THE MATTER
of the Companies Act, (Cap. 247)

BETWEEN:

NATIONAL MBF FINANCE (FIJI) LIMITED
Petitioner

AND:

ANSHAL TRANSPORT SERVICES LIMITED
Respondent

Mr. M. Young for the Petitioner
Mr. S.P. Shfor the Respondent

JUDGMENT

This case concerns a petition to wind-up Anshal Transport Services Limited (the 'company') on the dual grounds that it "is unable to pay its debt and/or that it is just and equitable that the company should be wound-up".

The petition is opposed in an affidavit deposed by Anil Deo the Managing Director of the 'company' on the sole ground that the debt is not owed by the 'company' but "pertains to" a registered firm solely owed by the deponent and bearing a name very similar to that of the 'company' namely, Anshal Transport Services (the 'firm'). It was further deposed that:

"all dealings with Ranjobin Investments (Fiji) Limited were by Anshal Transport Service (the firm) and not by Anshal Transport Services Limited (the company)".

Barker J.A. in delivering the judgment of the Fiji Court of Appeal in Offshore Oil v. Investment Corporation Limited (1984) 30 F.L.R. 90 said at p.101:

"The law is clear that there is a discretion on a Court seized of a winding-up petition to decline to hear the petition where the debt is contested on substantial grounds."

In this case quite plainly the debt is 'contested' but, additionally, the court must be satisfied from the affidavit evidence provided that the 'ground(s)' advanced in opposition is/are 'substantial'.

It can never be sufficient for a deponent to merely assert that 'the debt is disputed', nor normally will it suffice in my view, to depose merely that a debt is disputed on the ground that it was not incurred by the debtor without some further explanation. More so where the debt being disputed is not denied as to its genuineness. It is necessary therefore to consider the evidence led in this application.

The circumstances which give rise to the winding-up petition may be briefly stated. On the 18th of March 1996, the petitioning creditor entered into a Domestic Recourse Factoring Agreement with Ranjobin Investments (Fiji) Ltd. (hereafter 'Ranjobin') under which it acquired the right, title and power:

"to demand, sue for, recover and receive by all lawful ways and means from all and every person whom it may concern all moneys, rents, debts, tributes, dues, goods and property whatsoever which now are or may hereafter become due owing, paybale or belonging to (Ranjobin) upon or by virtue of any ... bill, bond promissory note, sale of goods, account or upon any instrument relating thereto ..."

In this latter regard on the 10th of July 1996, 'Ranjobin' consigned a load of timber worth $12,822.20 to 'Anshal' as evidenced by an Invoice and Delivery Docket both numbered: 1013. The Invoice was made out in the name of: 'ANSHAL TRANSPORT SERVICE LTD., LAMI' and the Delivery Docket was addressed to: 'ANSHAL TRANSPORT LTD., LAMI'.

It is common ground that both documents were signed as having been received by 'ANIL DEO, Managing Director' and both bear the stamp: 'Anshal Transport Service'. It is also common ground that the transaction and delivery evidenced by the Invoice and Delivery Docket No: 1013 was genuine and did occur, although there is a suggestion that the delivery was subject to 'a dispute as to the nature, quality and quantity of timber delivered'.

By Demand Notice dated 23rd December 1996 addressed:

"TO: ANSHAL TRANSPORT SERVICE a firm having its registered office at 2 Lami Street, Lami."

The petitioner demanded payment of the debt. This was subsequently followed on 10th January 1997 by a 'Section 221 - demand' for the same debt issued by the petitioner's solicitors and addressed:

"TO: ANSHAL TRANSPORT SERVICES LIMITED a limited liability Company having its registered office at 2 Lami, Street, Lami."

In light of the above, Counsel for the 'company' submits with some force, that on the petitioner's own 'demand notices' there appears to be some doubt or uncertainty on the petitioner's part, as to which of the two business entities, the 'firm' or the limited liability company, was the true debtor.

Needless to say if it is the 'firm' that is truly liable for the debt as claimed by the Managing Director of the 'company', then winding-up proceedings would be unavailable as a means of enforcing payment and the petition ought to be dismissed in limine.

The Manager, Factoring of the petitioner company deposes however that the word "'Limited' was mistakenly ommitted (sic)" from its earlier 'demand notices' which were based on "internal records" which in turn, "are normally abbreviated to suit ... computer requirements and available space." This is neither challenged or denied.

Counsel for the petitioner company submits that the affidavit of the Managing Director of the respondent company is a 'blatant attempt by the company to evade a bona fide debt owed by the company to (the petitioner)' moreso, as it is, 'not in dispute that (Ranjobins) documents are genuine and goods were delivered and signed for by the deponent', and counsel rhetorically asks: 'if Anil Deo (the managing director of the respondent company) realised the difference between the respondent company and the firm, (as he has clearly deposed in his affidavit in opposition) why then did he purport to accept the invoice and delivery (both addressed to the respondent company) by stamping them with the firm's stamp?'

In this latter regard it is noteworthy that both the 'firm' and the 'company' have the same registered office at '2 Lami Street, Lami' and, despite the general denials in the affidavit of the Managing Director of the respondent company, it is nowhere specifically deposed that the name of the customer and/or consignee of the goods delivered under the particular Invoice and Delivery Docket No: 1013 being sued upon, was an error on the part of 'Ranjobin'.

Counsel also drew the court's attention to the printed notification at the bottom left corner of Invoice No. 1013 which reads in part:

"Any objection to this bill or its terms must be raised to National MBf within 14 days after receipt."

and counsel forcefully submitted that as no 'objection' was raised with the petitioner, in any way, shape or form by the respondent company or its managing director at the relevant time as they could have, therefore, no objection ought now to be countenanced by the Court.

Needless to say if the consignment was truly ordered by the 'firm' and intended to be accepted on its behalf, it would have been a simple matter to have altered the names on the relevant Invoice and Delivery Docket or to have drawn the attention of the petitioner within the time given in the 'notification', to the error in the 'terms' of the documentation.

I cannot accept that an Invoice and Delivery Docket raised in the name of a limited company can (without objection) be unilaterally altered or accepted on behalf of an unrelated firm simply by impressing the business stamp of the 'firm' albeit that it bears a name similar to that of the company to which the goods were sold and consigned.

In my considered view the existence of the 'firm's' stamp on Invoice and Delivery Docket No: 1013 is a 'red-herring' for which the petitioner cannot be held either responsible or even knowledgeable. Nor does it over-ride the clear 'designation' under which Anil Deo signed and accepted the timber on behalf of the named corporate consignee.

The affidavit in opposition to the winding-up petition is accordingly dismissed with costs.

D.V. Fatiaki
JUDGE

At Suva,
19th September, 1997.

Hbe0041j.97s