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TMI Blog1995 (3) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... billing guarantee and if the billing fell below that level, the respondent was entitled to charge 15 per cent. service fee on the shortfall. The case of the respondent is that various works connected with the aforesaid advertising were executed and 15 bills were submitted during the period February 28, 1984, to June 13, 1984, claiming a total amount of Rs. 1,24,952.34. Copies of these bills have been marked together as annexure "B". The further case of the respondent was that a payment of Rs. 34,000 was made by the appellant on two dates, namely, April 9, 1984, and May 25, 1984, leaving a balance of Rs. 90,952.34. Correspondence was exchanged between the parties, in which the respondent pressed for payment and the respondent's case is that the aforesaid amount was acknowledged to be due from the appellant to the respondent, A meeting between the representatives of the two companies took place on August 28, 1986. The minutes of the meeting were drawn up by the respondent on September 3, 1986. The further case of the respondent is that the outstanding balance of Rs. 90,952.34 was confirmed by the authorised representative of the appellant-company. In addition, the appellant's represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount. Liability to pay interest including the rate of 18 per cent. per annum was also denied. On the merits, it was pleaded that the appellant never acknowledged nor ever confirmed any balance due from it to the opposite party. In particular it was denied that an outstanding balance of Rs. 90,952.34 was ever admitted to be due from the appellant to the respondent either on August 28, 1986, or at any other stage. The appellant's liability to pay Rs. 52,500 under the minimum billing guarantee clause was also denied on the ground that the respondent had committed a breach of the conditions of the agreement and had failed to carry out advertising work properly and to the satisfaction of the appellant and they were, thus, not entitled to claim any amount under the minimum billing guarantee clause. By the order under appeal, the learned single judge held that the amount of Rs. 90,000 odd was admittedly outstanding against the appellant. The appellant-company had "neglected to pay the amount due in spite of repeated demands". It was also held that the appellant had failed to establish that the debt was not bona fide one. In so far as the claim of Rs. 52,500 under the minimum bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its remedy according to law by filing a regular suit. The contention of Mr. Malhotra, on the other hand, is that in accordance with the agreement, annexure "C", dated October 31, 1983, the respondent had sent for approval the estimated cost of the proposed expenditure on various heads. One of the stipulations while sending such proposed estimates was that if the appellant did not object to the same within a period of ten days, it would be concluded that the proposed expenditure had been approved. As no objection was raised, in terms of the aforesaid condition, the proposed estimate must be deemed to have been approved and expenditure within the limits of that estimate was rightly made and claimed by the respondent and, in fact, the claim had been admitted by the duly authorised representative of the appellant in his meeting with the representative of the respondent. The said admission was duly recorded as minutes of the meeting and the appellant had no bona fide dispute with regard to the payment of the said amount. We have given our anxious consideration to the respective submissions of learned counsel. The various clauses of section 433 lay down the circumstances in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le issues are raised, the summary jurisdiction of the company court cannot be invoked in order to compel the company to pay the amount on pain of being wound up. This view was taken by a Division Bench of this court in a recent decision in Punjab Ceramics Ltd. v. Punjab State Industrial Development Corporation Ltd. [1990] 1 PLR-526 ; [1991] 70 Comp. Cas. 415 (Punj. Har.). There is no material on record to show that the appellant-company is unable to pay the debt in dispute. Apart from the unilateral recording of minutes of the meeting of the representatives of the two companies held on August 28, 1986, and September 4, 1986, the correctness of which has been disputed, reliance is sought to be placed on memo, annexure P-5, dated August 28, 1986, written by the appellant to the respondent. The relevant part of the memo,, reads as under: "This is to confirm that we have received your bills amounting to Rs. 1,24,952.34 till June 30, 1984. Regarding balance of Rs. 90,952.34 shown in your statement our representative will contact your office to clarify discrepancy if any. As discussed with your Mr. Shamim Uddin today we shall let you know the payment schedule in one month's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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