9911796707
TMI Blog2000 (2) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... ner-company under an oral agreement and agreed to pay a sum of Rs. 1,60,000 in the following manner : ( a )Rs. 64,000 for preparation of project and filing of papers for loan syndication; ( b )Rs. 56,000 for processing of final loan documents for SIDBI, H.O. approval; ( c )Rs. 24,000 on receipt of sanction letter for loan; and ( d )Rs. 16,000 on disbursement of loan. It is stated that the loan was sanctioned by SIDBI under their letter dated 25-9-1996. Out of the said amount of Rs. 1,60,000 a sum of Rs. 9,000 was paid in advance and a balance of Rs. 1,51,000 remained to be paid by the respondent to the petitioner-company. Consequently, the petitioner-company raised a bill dated 27-9-1996 for the above-mentioned amount of Rs. 1,51,000. The bill is Annexure-1. The case of the petitioner-company is that under their letter dated 16-4-1997 (Annexure-2), the respondents admitted their claim for Rs. 1,51,000 and agreed to pay the same in two instalments of Rs. 1,35,000 and Rs. 16,000 by issuing two post-dated cheques. Rs. 1,35,000 was to be paid before the disbursement of the loan; whereas the other sum of Rs. 16,000 was to be paid after disbursement. Post-dated cheques were un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not by way of a winding up proceeding. Therefore, it has been contended on behalf of the respondent; that this petition for winding up be dismissed and petitioner-company directed to seek the remedy in appropriate forum by instituting a suit. 4. It is not disputed that the petitioner-company had rendered services to the respondent in the matter of syndication for sanction of loan to the latter by the SIDBI. It is also not disputed that by way of fees @ 2 per cent of the amount of loan was receivable by the petitioner-company from the respondent. The fact also remains admitted that out of the total amount of Rs. 1,60,000 being 2 per cent of the loan of Rs. 80 lakhs, a sum of Rs. 9,000 had already been paid by the respondents through demand draft dated 17-7-1996. Annexure 1 is bill dated 27-9-1996 raised by the petitioner-company on the respondent. The bill is in respect of Rs. 1,60,000 on account of syndication fee for the bread project of the respondent at Ranchi @ 2 per cent of the loan of Rs. 80 lakhs sanctioned by SIDBI under letter No. PFS 165 dated 25-9-1996. In the bill, payment of Rs. 9,000 as advance is adjusted. Thus, a sum of Rs. 1,51,000 was shown to be payable b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was a settlement between the parties and in consequence of such settlement of Rs. 31,000 was paid to the petitioner-company. Therefore, there is nothing to be paid. 7. As regards the plea on behalf of the respondent that they are solvent capable of meeting their all liabilities, contingent and prospective, the settled law is that if a demand notice is served on the debtor-company in accordance with the provision of clause ( a ) of sub-section (1) of section 434 and the latter does not make payment or neglects to pay the debt stated in the notice, a presumption regarding its insolvency is raised. Therefore, the onus shifts on the debtor-company to show that it is solvent. Be that as it may, the fact remains that it is nowhere the case of the petitioner-company that the respondent has become insolvent and, thus, incapable of honouring their liabilities including payment of their debt. What the petitioner-company has alleged and insisted is that inspite of the fact that the respondent admitted the claim for Rs. 1,60,000, they have neglected to pay the same except Rs. 40,000, (Rs. 9,000 - as advance and Rs. 31,000 at a later stage) inspite of demand notice. Therefore, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same inspite of demand notice. In this connection it may be mentioned that both the parties have not brought to this court real facts. The petitioners have stated in their demand notice that they had made repeated demands and requests for payment of the dues after adjusting the advance of Rs. 9,000 and subsequent payment of Rs. 31,000. Not a chit of paper in support of such repeated demand and request has been produced by the petitioner-company. It appears that a sum of Rs. 31,000 was paid to the petitioner-company through a demand draft dated 30-4-1997. One infers that such demand draft would have been sent to the petitioner-company with a forwarding or covering letter. That letter could have shown the nature of payment. Neither the petitioner-company have produced that letter nor the respondent a copy thereof. 10. The respondents say that payment as agreed under Annexure 2 could not be made in view of some deficiency in the service rendered by the petitioner-company and the latter deny it. There is oath against oath. Whether or not actually there was a deficiency in services rendered by the petitioner-company necessitating settlement of account between the parties, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
