Re Bentimi Pte Ltd; In the Matter of Part X of the Companies Act, Chapter 50 (1994 Revised Edition) v In the Matter of Bentimi Pte Ltd

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 15 April 2003
• Neutral Citation: [2003] SGHC 92
• Court: High Court (Singapore)
• Published date: 05 May 2004
• Year: 2003
• Plaintiff Counsel: Anna Quah (Ang & Partners)
• Defendant Counsel: Loo Dip Seng (Ang & Partners),Gurdaib Singh (Gurdaib Cheong & Partners)
• Subject Matter: Companies,Winding up,Creditor relying on document to prove debt,Company alleging document is forged,Whether there is a bona fide dispute.,Creditor alleging that company carried on business improperly,Whether just and equitable to wind up company.
• Citation: [2003] SGHC 92

1 The petitioner is a factoring company incorporated in the UK. The respondent is a Singapore company incorporated in 1992 as an import and export company, but it avers that it had been dormant since 1998. This petition was brought to wind up the respondent on the grounds that it is insolvent and unable to pay its debts, and alternatively, that it is just and equitable to do so.

2 The petitioners purchased debts purportedly incurred by the respondent to a company called RBG Resources PLC. The debts arose from the purchase of antimony ingots and nickel cathodes from RBG. The amount owing was over S$2m under a total of nine invoices. However, the petitioner had sold five of them back to RBG and are now claiming payment under the remaining four. The total amount owing under these four (No. 310259, 310641, 310770 and 310870) is S$1,135,007.54.

3 On 25 March 2002 RBG on the advice of its auditors, whom the petitioners had consulted, sent a telefax to the respondent stating that it was in connection with RBG’s internal audit. The telefax requested the respondent to confirm the nine invoices, unpaid as of 14 March 2002. The telefax was endorsed with a stamp of ‘Bentimi Pte Ltd’ (the respondent company) with a signature purportedly by one ‘Niranjan Desai’. The respondent aver that the signature was a forgery although it does not dispute that the telefax from the auditor was sent to a telefax number belonging to the respondent. The reply was sent from the same number.

4 The respondent company appears to have four directors at the material time. Three of them were members of a family. Desai Niranjan Resiklal, his wife, Desai Freny Niranjan, and their son Desai Viren Niranjan. The fourth was a director who was in Dubai. The respondent denies any knowledge of transactions with RBG. The directors affirmed in their affidavits that they did not purchase any goods from RBG.

5 On the strength of the verification telefaxed (on 28 March 2002) purportedly by ‘Niranjan Desai’ on behalf of the respondent, the petitioner served two statutory demands (on 10 and 17 June 2002 respectively) on the respondent. The two demands were in respect of the four aforesaid invoices. No payment was made and three weeks later the petitioner filed this petition to wind-up the respondent.

6 The respondent produced its telephone bills which did not show any record of telefaxes being sent to RBG. But Miss Quah, counsel for the petitioner, argued that by sending the telefax back to RBG the inference must be that the respondent admitted the debt. The case of Gobind Lalwani v Basco Enterprises Pte Ltd [1999] 3 SLR 354 and Capital Realty Pte Ltd v Chip Thye Enterprises Pte Ltd [2000] 4 SLR 548 were cited in support.

7 I think that there can be little doubt that a signed audit confirmation constitutes a strong prima facie evidence of a debt – as was so held in the Capital Land and Gobind cases. But the issues arose in a trial in that case and the person who signed it testified in court and his evidence was tested (and not accepted) by the trial judge. In the present case, the petitioner are desirous of winding-up a company on a disputed debt on the basis of this signed verification, which is not the audit confirmation to its own auditors, but an enquiry from the purported creditor. This difference may not ultimately be...