HIGH COURT OF CALCUTTA
Brand Value Communications Ltd., In re
SANJIB BANERJEE, J.
CP No. 213 of 2012
FEBRUARY 4, 2013
ORDER
1. The Court – The claim of the petitioning creditor is on account of charges for preparing several episodes of a television serial for the company. The statutory notice of June 15, 2012 claimed that the petitioner was entitled to a sum of Rs. 1,45,000/- together with applicable service tax to be paid after 60 days of telecast of each episode. The soap ran for 317 episodes and the petitioner has received payment for 226 episodes and the claim in the statutory notice was for the remainder. The petitioner appended a chart indicating the dates of telecast and the invoices pertaining to every episode for which the petitioner remained unpaid.
2. The company replied on July 9, 2012, asserting that there was another agreement between the parties which was executed on April 7, 2010, by which the petitioner assigned its rights in respect of 70 films for such films to be exhibited on the company’s channel. According to the company, the average value of each film was calculated at Rs.36 lakh but considering the large number of films, an aggregate amount of Rs. 25 crore was paid by the company to the petitioner as consolidated consideration for assignment of the rights pertaining to the 70 films. According to the company, the petitioner had fraudulently overvalued the films and the company is entitled to claim a sum of “Rs. 14.45 crore being excess amount realised by you fraudulently overvaluing the films over and above Rs. 6,84,00,000/-.” Upon asserting the counterclaim, the company’s reply to the statutory notice proceeded to say as follows:
“In such circumstances, our client is entitled to adjust and had adjusted the sum of Rs. 1,45,26,184.00 against the said sum of Rs. 21.29 crore as due and payable by you.
“Under the circumstances a sum of Rs. 19,83,73,816/- is therefore still due and payable by you to our client …”
3. The petitioner’s statutory notice had claimed a sum of Rs. 1,41,38,347/- though the company’s reply gave the petitioner credit for a sum of Rs. 1,45,26,184/-.
4. The company has relied on a copy of the agreement of April 7, 2010 from which it appears that a consolidated consideration of Rs. 25 lakh was required to be paid by the company to the petitioner in three tranches between April 15, 2010 and March 31, 2010. Assuming that the entire payment has been made and the company has a claim against the petitioning creditor in respect of the said agreement of April 7, 2010, such claim is in damages for an unliquidated sum and, though the company can set up the same by way of a counterclaim, it will not entirely defeat the petitioning creditor’s present claim.
5. There is no defence which is raised by the company against the petitioner’s claim on account of remuneration or charges for the unpaid part of episode Nos. 217 to 317 of the relevant serial. So much is admitted by the company in reply to the statutory notice and at least at two places as noticed above.
6. Since the company’s counterclaim is by way of an unliquidated sum in damages, and the company has no defence to the petitioner’s claim herein, the company is permitted to furnish security to the extent of the petitioner’s claim of Rs. 1,41,38,347/- within a fortnight from date whereupon this petition will remain permanently stayed. The company says that it has instituted winding-up proceedings in respect of its claim against the petitioner under the agreement of April 7, 2010. Such other petition has been adjourned earlier today and is due to appear in the next monthly list. Upon the company’s deposit being made, it will abide by the result of the other petition being CP No. 361 of 2012 and, if such other petition were to be permanently stayed, the deposit will abide by the result of any suit that the company may institute against the petitioner within four weeks of CP No. 361 of 2012 being permanently stayed. In default of the deposit being put in, however, the present petition will stand admitted and the petitioning creditor will have leave to advertise the petition in “The Statesman” and “Bartaman”, indicating that the matter will be returnable before Court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with.
7. In the event the deposit is made, the Registrar, Original Side, will invest it by way of a fixed deposit with any nationalized bank having its branch within the vicinity of this Court. The fixed deposit will abide by the result in CP No. 361 of 2012 and, in the event of such petition being permanently stayed, it will abide by the result of the suit that may be launched by the company against the petitioning creditor within four weeks from the date of CP No. 361 of 2012 being permanently stayed. In the event the suit is not instituted within the period permitted, the petitioner will be entitled to the entire amount of the fixed deposit together with all accrual thereto in full and final satisfaction of its claim in the present proceedings.
8. There will be no order as to costs.
