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In the Matter of Total Marketing & Consultancy Ltd [2012] FJHC 1251; HBE13.2012 (3 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
COMPANIES PROCEEDINGS

HBE No. 13 of 2012

IN THE MATTER of TOTAL MARKETING & CONSULTANCY LIMITED

-and-

IN THE MATTER of the Companies Act, 1983

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. R. Naidu for the Plaintiff
Mr. M. Nand for the Defendant

Date of Hearing: 27TH July, 2012
Date of Ruling: 3RD August, 2012

RULING

A. INTRODUCTION

1. The Respondent filed an affidavit in opposition for the winding up. The Petitioner is a financial institution which borrowed money to the Respondent company on 19th March, 2009 and when the Respondent failed to honour the timely payments, the Petitioner restructured the loan by 'Borrowing facilities –Letter of offer' dated 12th May, 2010. The Respondent though accepted the said restructured offer, it again defaulted the payments and the security of the loan was surrendered and sold and the present petition was filed after the notice of the remaining debt. The alleged debt is based on the remaining balance of the debt in the Respondent's loan account with the Petitioner.
   
2. The Respondent filed an affidavit in opposition, but there is no issues of serious dispute as to the facts.
   
3. The Respondent admit the signing of the restructured loan and condition in the 'Borrowing Facilities- Letter of Offer' dated 12th May, 2010 and also admit default of the said payments.
   
4. The Respondent also admit that the security for the said loan, which was a twin-cab, was also surrendered to the Petitioner, after the defaults of the payments.
   
5. The Respondent blames the Petitioner for failure to provide additional credit of $10,000 for his fish business, but this is clearly not the dispute of the debt.
   
6. I do not have evidence of such assurance or promise by the Petitioner to grant additional credit by the Petitioner and in any event even if such assurance was made, the Petitioner cannot be compelled to give credit to a debtor as it was their prerogative and there is no dispute of the debt.
   

B. CONCLUSION

7. The Petitioner which is a financial institution has instituted this action for winding up of the Respondent on the basis of outstanding amount in the loan account. The Respondent admit the restructured loan agreement dated 12th May, 2010, but state that certain items in the said letter is irregular. If so why they signed it has not been explained. The items that are disputed are the charges on early settlement on the said offer letter. In the restructuring the Petitioner has charged early settlement charges to the account and for the accounting purposes the loan was re-written, but if the Respondent did not agree with the said accounting principle or disputed the said charges, which is clearly and separately shown, in the offer letter of 12th May, 2010 he could have refused or disputed that item. I do not have any evidence of such a dispute being raised even at the time of the demand notice under Section 221 of Companies Act was served. So, there is no dispute raised in the affidavit in opposition filed by the Respondent and the order in terms of the petition for winding up is granted. Considering the circumstances of the action I do not wish to make an order for cost.
   

C. FINAL ORDER

1. The Petition for the winding up of the Respondent is granted.
   
2. No cost.
   

Dated at Suva this 3rd day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva