9911796707
TMI Blog1996 (1) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... orth Rs. 28,14,658.50 from it during the period from July, 1984, to December, 1986, and that the respondent is due as on November 30, 1989, in a sum of Rs. 20,74,531.83 inclusive of interest at 24 per cent. per annum. The respondent failed to pay the amount in spite of repeated reminders. The petitioner issued statutory notice under section 434(1)( a ) and ( c ) of the Companies Act on November 11, 1989, and the company in its reply denied the liability. The respondent filed a counter denying its liability to pay any amount and averring that the petitioner has waived its claim, that in any event, the claim is barred by limitation, that in order to overcome the bar of limitation the petitioner has filed this petition and that the financial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing amount relates to Bills Nos. 2, 3, 4 and 5 dated July 2, 1984 (exhibits A-11, 19, 27 and 35), for Rs. 2,56,041, Rs. 2,42,959.50, Rs. 2,32,227 and Rs. 2,45,794.50, totalling to Rs. 9,77,022. The balance represents the interest after deducting Rs. 1,50,000 paid by the respondent from March, 1986, to December, 1986, which has been adjusted towards interest. Though there is no trade practice to charge interest on delayed payment, condition No. 9 in the bills stipulates payment of interest. Mr. C. Malla Reddy, learned counsel for the petitioner, has contended that as per the letter dated September 13, 1986 (exhibit A-5) written by the respondent, in reply to the demand made by the petitioner, the respondent has admitted its liability and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exhibit B-l, it is clear that the last supply was made by the petitioner on October 5, 1984, covered by bill No. 131 for Rs. 1,91,304.50 which has been paid by the respondent on October 11, 1984. There were no supplies by the petitioner from October 5, 1984, and, thereafter, till December 27, 1986, the respondent has been paying periodically certain amounts. The petitioner, as supplier, has always figured as creditor and the respondent as debtor. There were no counter transactions. The counter transactions referred to in exhibit B-5 letter dated September 13, 1986, are with the Continental Projects Limited, which is associate concern of the petitioner. In Raghunath and Sons P. Ltd. v. Pandam Tea Co. Ltd. [1978] 48 Comp. Cas. 577 ; [197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Projects Limited against the respondent herein was dismissed at the admission stage on the ground that the claim was, prima facie, barred by time. There, the transactions ended on March 12, 1985, and the company petition was filed on March 10, 1989. As it was dismissed at the stage of admission and as there are no details about the nature of accounts, this decision is not of much help. Mr. C. Malla Reddy, learned counsel for the petitioner, relies on three decisions, i.e., Pandam Tea Co. Ltd., In re [1975] 45 Comp. Cas. 67 (Cal), Synthetic Wire Industries Pvt. Ltd., In re [1984] 56 Comp. Cas. 461 (Cal) and Northern India Iron and Steel v. Haryana Ispat [1990] 68 Comp. Cas. 42 (P H). In Pandam Tea Co. Ltd., In re [1975] 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, this decision is distinguished. The last decision relied on by learned counsel for the petitioner is Northern India Iron and Steel v. Haryana Ispat [1990] 68 Comp. Cas. 42 (P H). There, again the facts were different. The creditor filed an earlier petition for winding up and in view of the compromise the petition was dismissed with permission to the petitioner to file a fresh petition, if the debtor-company did not pay the debt under the terms of the compromise. Some amounts were paid, leaving a balance of Rs. 2,25,000. As this was not paid the creditor filed another petition for winding up, enclosing the statement of accounts. The debtor-company disputed the quantum of debt in the written statement contending that the creditor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Ch 349 (Ch D)). Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely. (See Tweeds Garages Ltd., In re [1962] Ch 406 ; [1962] 32 Comp. Cas. 795). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and thirdly, the company adduces prima facie proof of the facts on which the defence depends." This was reiterated in a recent case Pradeshiya Industrial and Investment Corporation of U.P. v. North India Petroc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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