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TMI Blog2004 (12) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner that in respect of the said supply of goods an amount was due and payable by the company to the petitioner. According to the petitioner the said amount was liable to be paid within the period of 60 days from the date of supply of the goods under each of the invoice. According to the petitioner, after the period of credit is expired i.e. 60 days, the petitioners are entitled to levy 2% what is known as delayed payment charges. For the aforesaid claim of 2%, the petitioners are relying upon the printed clause on the invoice which inter alia reads as under: "The agreed credit period for payment of dues on account of this sale is 60 days. If the amount is not paid within the agreed credit period, the customer will be cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the petitioner they have issued credit note in respect of the said delayed payment charges and the respondent company is liable to effect payment thereof. 5. According to the learned counsel for the petitioner, thus if the delayed payment charges is taken into account then as of today, there is an outstanding of Rs. 1,23,80,152.69. The learned counsel for the petitioner thereafter drew my attention to pages 8 and 12 of compilation of documents and has inter alia contended before me that there is an acknowledgement of the liability to pay the amount by the respondent company. According to the petitioner insofar as the dispute raised pertaining to the delayed payment charges is concerned it is not a bona fide dispute inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my attention to the letter dated 23-10-2000 inter alia recording therein the minutes of the meeting where the representative of the company was also present. In the said letter the petitioner company has agreed to allow the set off of the delayed payment charges against the quantity discount offered to the respondent company for supply of the said phenol. The petitioner s contention is that on the basis of the said letter dated 23-10-2000 it can be duly stated that the liability of making payment of the delayed payment charges has been accepted by the respondent company in toto. According to the petitioner company no bona fide dispute arises and therefore the respondent company being liable to pay its admitted claim is liable to be w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew the same is essentially a question of fact which depends upon the facts of each case. I have to determine in the present case that whether the disputes raised by the company are bona fide or not. 8. The respondent company has on the other hand urged before me that there is no liability to pay the DPC charges at all. He has further contended that in so far as the principal amount is concerned, the entire amount has been duly paid off to the petitioner company. He has drawn my attention to paragraph 8 of the petition in which it is claimed by the petitioner that there is an amount due and payable by the company in the sum of Rs. 24,40,750.90. He has pointed out paragraph 9 of the petition, in which the petitioner has admitted that o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal amount. After setting out the aforesaid facts, the respondent company has called upon the petitioner to accept the said principal amount in full and final settlement of the dues. Further, by letter dated 9-1-2003, the respondent company forwarded two cheques for Rs. 14,49,204.17 and Rs. 8,11,631.00 aggregating to Rs. 22,60,835.37 stating therein that if they accept the proposal of the respondent company dated 4-1-2003 then only the petitioner should deposit these cheques towards the outstanding amount and with the said deposit all outstanding will stand cleared and that the petitioner shall issue a no due certificate accordingly. It is an admitted position before me that the entire amount has been accepted by the petitioner company an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o merit. It is an admitted position that after filing of the petition, four cheques are paid by the respondent company to the petitioner of sum of Rs. 25,000 each. It is the case of the petitioner that though they received the said amount, the same has been adjusted by them towards the delayed payment charges and not towards the principal. It is contended before me that it is because there was no direction to appropriate the said amount towards a particular debt i.e. the principal amount while forwarding the cheques and in view thereof they as a creditor were entitled to adjust the said cheques against the delayed payment charges though the same were forwarded with the intention to pay towards the principal amount. The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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