9911796707
TMI Blog1995 (7) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the petitioner is that the company duly accepted the aforesaid and by writing duly acknowledged and admitted its liability to the petitioner in respect of the said sum as will be evident from a communication dated September 21, 1992, addressed by the company to the petitioner. It has also been stated that by the said communication the said company also promised to make payment of the said sum of Rs. 24,32,416.01. Thereafter, subsequent to March 31, 1992, pursuant to several orders placed by the company on the petitioner the company from time to time and up to September, 1993, sold and delivered to the company diverse quantities of papers at agreed rates and as per specification given by the company to the petitioner. The company accepted the said supplies and without raising any objection with regard thereto. The petitioner also raised bills in respect of the said further supplies. Particulars of the said bills are set out in the schedule annexed to the petition, and marked 'B'. The company accepted the said bills without raising any objection with regard thereto. As per annexure 'B' the total bills of the petitioner between March 15, 1992, and September 14, 1993, came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 8,35,685 on account of interest and an amount in lieu of sales tax declaration forms amounting to Rs.-1,29,934. The petitioner served a statutory notice making a demand and no reply was sent to the same. An affidavit in opposition was affirmed by one Pratap Kumar Chakraborty, on May 6, 1994. In the said affidavit-in-opposition, it has, inter alia , been stated as follows : - "Although certain bills have indeed been raised by the petitioner, such bills, in fact, bear no nexus to the transactions dealt with in the petition and neither such bills nor any other bills were accepted by the said company without any objection and/or demur and/or protest. It is emphatically denied that in respect of the said bills or in respect of any other bills a sum of Rs. 24,32,416.06 became due and payable by the said company to the petitioner. It is further denied that the said company accepted the aforesaid or acknowledged or admitted its liability to the petitioner in respect of the sum or that such admission or acknowledgment is evident from the communication dated September 21, 1992. The said purported communication dated September 21, 1992, is a totally manufactured document and has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor corroborated particulars of the tabulation therein. The said deponent on behalf of the company said that amongst several other invoices tabulated therein, one such invoice dated August, 31, 1992 bearing No. AAB/039/ 92-93 has been asserted to be an invoice whereby a sum of Rs. 2,44,997 has been demanded from the said company. The deponent submitted that from a perusal of the original bill, it appears that the bill of Rs. 2,44,997 was, in, fact, paid on Rs. 1,55,996 upon and after due reconciliation of the accounts. A copy of the said invoice has been annexed to the said supplementary affidavit. From the said copy, it appears that the bill was for Rs. 2,44,993.02, but certain handwritings had been made in the said bill showing a deduction therefrom of Rs. 89,027. The deponent has not said anything with regard to the said handwritings as to when and how and by whom the said handwritings have been put and as to how and on what account could any deduction be made in the bill of the petitioner. No correspondence has been annexed nor any grounds have been stated for the alleged deduction in the bill. Leave was given to the petitioner to file a further supplementary affidavit in reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited the promisee to come and see him with the note. Thereafter, the actual renewal of the promissory note was not done. In the facts of that case, the court was of the opinion that there was no fresh promise nor fresh contract and that the letter written was not sufficient to be interpreted as a promise. However, Justice Buckland referred to the case of Spencer v. Hemmerde [1922] 2 AC 507 wherein it was held as follows : "If there is an acknowledgment in writing which satisfies the Act (9 Geo. 4, C. 14) there arises by implication of law a promise by the debtor to pay the debt (Per Lord Wrenbury at p. 537)." Justice Buckland in the said case further held as follows (page 659) : "If that passage correctly expresses the law in this country, application of the principles of English law is excluded. In considering the question independently of the authorities, I must confess to difficulty in appreciating, why, if a promise to pay may be inferred from an acknowledgment according to the principles of England law, a promise sufficient to satisfy section 25(3), which does not in terms state that the promise should be express may not equally well be inferred from an acknowled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iving a different meaning to an acknowledgment that there is a right to have the accounts' settled, and no qualification of the natural inference that whoever is the creditor shall be paid when the condition is performed by the ascertainment of a balance in favour of the claimant. It is a case of the third proposition of Mellish L. J. a conditional promise to pay and the condition performed." Learned counsel for the petitioner also relied on the Full Bench judgment of Shanti Parhash v. Harnam Das, AIR 1938 Lah 234, 237. In the said case, the Full Bench of the Lahore High Court held as follows : "Again, I may say that if the matter were res integra, the contention would weigh considerably with me and I would be inclined to give effect to it; but the matter is not res integra. A long course of rulings has held, not only on the question of interest, but where the words used amount to the words 'is payable' or 'to be paid' or 'to be taken' or 'to be given' 'baqidena' 'baqilena', etc., almost invariably that such words amount to a promise to pay within the meaning of section 25(3), Contract Act. So far as interest is concerned, there is no ruling in his court to the contrary, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred debt. Furthermore, a confirmation of account even amounts, in my opinion, to an account stated since what is asked for is confirmed. Even apart from that, it appears from the statement annexed to the said further affidavit-in-reply that during the year 1991-92, supplies were being made and part payments were also being made right upto March 31, 1992. Cheque was given for Rs. 75,000 on April 4, 1991, and four cheques were given on March 31, 1992, and several payments were made during the period in between. I am unable to accept that the amount shown in the letter dated September 21, 1992, was a time-barred debt or that the admission made in the letter has been sought to be explained on behalf of the company, or that there was no promise to pay as has been submitted on behalf of the company. I am also Unable to accept that Pravesh Kumar, was not authorised to sign the said letter. The said Parvesh Kumar, at the relevant time, was the business manager of the company and even the signatory to the cheques. In my opinion, the company has no defence to the claim of the petitioner for the principal amount of the claim whatsoever and the entire defence is mala fide and has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
