petrofuel t limited v group six international company t limited 2022 tzhccomd 49 10 march 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC COMMERCIAL CAUSE NO. 3 OF 2022 IN THE MATTER OF COMPANIES ACT, 2002 AND IN THE MATTER OF PETITION FOR WINDING UP OF GROUP SIX INTERNATIONAL COMPANY LIMITED BETWEEN PETROFUEL (T) LIMITED............................................................... PETITIONER AND GROUP SIX INTERNATIONAL COMPANY (T) LIMITED................................................................ RESPONDENT Date of Last order: 18/2/2022 Date ofJudgement: 10/3/2022 CONSENT JUDGEMENT MAGOIGA, J. The petitioner, PETROFUEL (T) LIMITED by way of petition, instituted the instant suit against the above-named respondent, praying for decree in the following orders, (a) Group Six International Limited (Registration No 55542) which was incorporated on 9th February,2006 be wound up by this Hon. Court under the provisions of section 279(1) (d) of the Companies Act, [Cap 212 R. E. 2002]; (b) The appointment of an interim Liquidator pursuant to Section 295(1) of the Companies Act 2002 [Cap 212 R. E. 2002]; (c) Such further orders or reliefs this honourable Court deems just, equitable and convenient; and (d) Costs of this petition be provided for. When this petition was called on for orders on 10th March, 2022, Mr. Issa Mrindoka learned advocate for the Petitioner and Mr. Peter Kamia, learned advocate for the respondent informed the court, they managed to settle the matter and deed of settlement has already filed in this court today on 10th March, 2022. The learned counsel for parties prayed that the same be recorded and a decree be issue as decree of the court on the terms and conditions agreed. I have gone through the Deed of Settlement filed in this court by the parties and indeed filed under order XXIII Rule 3 of the Civil Procedure Code [Cap 33 R. E. 2019]. The said Rule 3 which provides that:- "Where defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded and shall pass decree in accordance therewith so far it relates to the suit". This provision was defined by Mulla, the Code of Civil Procedure Act of 1908 (14th edition) on page 1828, who stated that: "The rule gives a mandate to, the court to record a lawful adjustment or compromise and pass a decree on in terms of such compromise and such consent decree is not appealable when the agreement relates to whole suit. The court on being invited by the parties record the agreement and pass a decree in accordance with the agreement and the suits ends there". This position was acknowledged by the Court of Appeal in the case of Motor Vessel Speideh and Another v. Yusuph Mohamed Yusuph and two others Civil application No 237 of 2013 (unreported) in which the Court of observed that: "Where there is lawful agreement or compromise the court is bound to record a settlement once it is arrived at by the parties." I have examined the deed of settlement which seeks to settle the whole petition once and for all. Therefore, by a deed of settlement dully executed by the parties in this petition and filed in this court, this court hereby record this to be settled out of court in the terms and conditions as agreed in the deed of settlement under Order XXII Rule 3 of the Civil procedure Code in the following words: 1. The petitioner has agreed upon request to waive the accrued interest and allowed the respondent to pay only the principal outstanding amount of TZS.314,791,136/-on or before 31st day of March, 2022; . K’ 2. That in consideration of the waived interest, the debtor has respondent has guaranteed and commits that the petitioner will continue as the exclusive supplier of fuel to the respondent plus its affiliate companies namely; Lesso Concrete Limited, GSI Concrete Limited and Ivory Tower and that such fuel supply shall be on a contract basis with terms and conditions for each contract to be signed upon by such companies; 3. That in addition to the foregoing in para 2 above the respondent guarantees and commits itself that the petitioner will be the only and sole fuel supplier for the phase 1 construction activities at the new Kibaha Kwala industrial park project for which the debtor will be the contractor; 4. Immediately after signing of this Deed of Settlement within a period of not more than two (2) working days, the petiotiner will issue a statement in a newspaper where the winding up petition was published confirming the commercial dispute between petitioner and respondent have been settled amicably out of court. That the statement to be published shall be reviewed and approved by the respondent's legal counsel before the publication and advertising costs will be borne by Advocates for parties; 5. That in the event of default by the respondent to honour the terms and conditions of this Deed of Settlement, the petitioner will re-institute the winding up proceedings in court, the waived interest will keep intact and claimed with accrued interest from the date of executing this deed to the date of full payment and will constitute fresh cause of action of claim against the said executor contracts as referred to under paragraphs 1, 2, and 3 above; 6. Upon execution of this Deed of Settlement, the petitioner pray this court tomark the winding up petition against the respondent's company and the court to issue an order which will have an effect of a Decree/ Drawn Order of the court. It is so ordered. Dated at Dar es Salaam on this 10th day of March, 2022. S.M. MAGOIGA JUDGE 10/3/2022