9911796707
TMI Blog1994 (3) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1989, October 3, 1989, January 19, 1990, February 19, 1990, and March 9, 1990, for a sum of Rs. 1,74,560 have not been made by the respondent. After a notice had been given by the petitioner on April 1, 1992, a sum of Rs. 50,000 was paid by the respondent, vide draft No. 480138 on April 8, 1992, drawn on the State Bank of India. The petitioner claimed that a sum of Rs. 2,69,806 was due to it as on March 27, 1992 (principal amount of Rs. 1,74,560 and interest amounting to Rs. 95,246. Notice dated April 1, 1992, was sent by the petitioner to the respondent and a reply to the said notice was sent by the respondent on April 20, 1992, through its advocate. The petitioner has pleaded that after deduction of Rs. 50,000, the petitioner-company is still entitled to get Rs. 2,19,806, but the respondent has failed to make payment of the amount. According to the petitioner, it was specifically mentioned on the bills that if the amount was not paid, interest will be charged from the respondent-company. Despite this, payment was not made in time and, thus, the petitioner has become entitled to claim interest at 21 per cent. per annum. The further case of the petitioner is that despite service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest was an implicit condition of the contract between the parties. He further pointed out that the petitioner had itself admitted payment of the outstanding sum of Rs. 1,54,000 and, therefore, it must be held that there is no dispute between the parties regarding the amount payable to the petitioner. Shri Garg further submitted that by annexure "R-7", dated December 4, 1991, the petitioner had made it clear that the respondent shall have to make payment of interest. This liability was never denied or disputed by the respondent and, therefore, non-payment of interest by the respondent must be construed as its failure to pay debt. Shri Garg placed reliance on : Stephen Chemicals Ltd, v. Delhi Cloth and General Mills Co. Ltd. [1987] 61 Comp Cas 355 (P H) ; Beninson v. Shiber [1946] AIR 1946 PC 145 ; Shanmugam Pillai v. Annalakshmi Ammal [1950] AIR 1950 FC 38 and Harishchandra v. Kailashchandra [1975] AIR 1975 Raj 14. Shri Bhandari, learned counsel for the respondent, argued that no agreement was entered into between the parties at any point of time for payment of interest by the respondent in the event of non-payment of the amount specified in the bills within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into between the parties. Learned counsel submitted that merely because the petitioner had in the bills printed a particular condition, such condition cannot be treated as a part of the contract and no liability can be fastened on the respondent on the basis of a unilaterally printed condition. Shri Bhandari lastly argued that there is a serious controversy between the parties about the entitlement of the petitioner to interest at the rate of 18 per cent. or 21 per cent. and the dispute is a genuine and bona fide dispute. Such dispute cannot become the subject-matter of the petition filed for winding up of the company. He further submitted that in reply to the notice dated April 20, 1992, which the respondent had sent in response to the notice, it had been made clear by the respondent that the interest claimed on the bill amount was never agreed between the parties and that on a telephonic conversation between the parties it was agreed that the petitioner shall not insist on payment of interest if the balance of Rs. 1,24,560 was paid. Learned counsel relied on : Ultimate Advertising and Marketing v. G.B. Laboratories Ltd. [1989] 66 Comp Cas 232 (All); Hindustan Sanitary a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich are bona fide disputed by the company and cannot be used as a weapon to pressurise and coerce a company to make payment. In UCO Bank v. Jagitia Paper Mills ( P. ) Ltd. [1988] 2 RLR 357, this court has expressed the same view. Other decisions on which learned counsel for the respondent placed reliance also lay down the same principles of law. The above quoted principles of law are to be applied in each and every case having regard to the facts of that case. No hard and fast rule can be laid down for arriving at a conclusion whether the dispute raised by the company is a bona fide one, or whether it is a substantial and real dispute. In so far as the present case is concerned, the petitioner-company has not produced any written agreement which the parties had entered into before the petitioner started supply of goods to the respondent. It is also not pleaded that any oral agreement had been arrived at between the parties that the respondent shall pay interest at a particular rate in case of its failure to pay amount of a particular bill. The petitioner has also not come out with the case that at the time of supply of goods any such agreement was arrived at betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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