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TMI Blog2004 (8) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, required to make payment in respect of these invoices within 90 days of the supplies. However, the respondent failed to honour its commitment for the payment on due dates. As per records of the petitioner, respondent owes a sum of Rs. 32,68,640 as on 30-6-2002 and overdue interest charged thereon comes to Rs. 11,91,326. The details of bills are given in Annexure A-3 and statement of account showing the aforesaid outstanding is annexed with the petition as Annexure-A-4. These are the averments made in the petition regarding the transaction in question. 2. It is also stated by the petitioner that despite various reminders, requests and meetings of the petitioner s representative, the respondent has not fulfilled its commitment. In the letter dated 31-10-2001 the respondent even accepted its liability to the extent of Rs. 30,62,670 and, therefore, the petitioner s stand is that at least to this extent the liability is acknowledged and even still the amount is not paid. The petitioner served a statutory notice dated 27-7-2002 under sections 433 and 434 of the Act calling upon the respondent to clear the outstanding dues of the petitioner, which according to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unter-blast. Therefore, the case of the respondent is that not only respondent has legitimate defence to the instant petition, the petitioner has deliberately and with mala fide intent concealed the aforesaid facts in this petition which is an abuse of the process of the Court and, therefore, the petition should be dismissed with exemplary costs. 5. In the rejoinder filed by the petitioner, the petitioner does not dispute the passing of the aforesaid award by Mr. Justice A.N. Verma (Retd.). However, the petitioner argues that against the said award, SLP No. 12290/2000 is filed which is pending before the Supreme Court and further that these arbitration proceedings have no bearing on the instant case and because of these reasons the facts thereof were not disclosed in the company petition. 6. The necessary factual matrix can thus be summed up by stating that the supply of material by the petitioner to the respondent and amount payable by the respondent to the petitioner in this behalf is not denied though there is some dispute about the exact amount payable. On the other hand, amount payable by the petitioner to the respondent under the award is not denied by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to pay on receipt of the statutory notice would not come into force. In the present case, it is quite evident that there is a bona fide dispute raised with regard to the liability of the respondent-company. Learned Counsel for the petitioner vehemently argued that the liability of the respondent is different from the liability which may be imposed on Mr. Prasad by the said lease agreement. He has also argued that if the accounts are to be gone into, it is the case of the petitioner that a sum of Rs. 60,384.01 or so is due from Mr. Prasad. In this case, Mr. Prasad has also undertaken to get his gratuity and other amount due from the petitioner company to him adjusted in the said deposit of Rs. 3,00,000 if the respondent was not in a position to pay back the deposit amount on vacation of the premises. So it cannot be said that Mr. Prasad is a stranger to the lease agreement." (p. 613) 9. The second judgment cited by learned Counsel for the respondent is the Division Bench judgment of Calcutta High Court in the case of J.N. Roy Chowdhury Traders (P.) Ltd. v. Jainti Enterprises [1987] 61 Comp. Cas. 504 . In that case the Court after taking note of number of judgments he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner despite service of the statutory notice, it must be shown that the company has omitted to pay without reasonable excuse. It is also observed that the existence of valid counter-claim would clearly constitute a reasonable excuse for non-payment." (p. 511) 11. I may point out at this stage that when the arguments were heard on 10-8-2004 the learned Counsel for the petitioner could not rebut the aforesaid legal submissions of the respondent. He, however, sought time for filing written submissions and to cite some judgments for which two days time was granted. Written submissions are filed in which it is highlighted that two transactions are separate and independent having separate legal sanctity and further that the claim of the respondent in the arbitration proceedings is under adjudication at present. Relying upon the judgment in the case of Hotline Teletube Components Ltd. v. A.S. Impex Ltd . 2003 (105) DLT 762 it is emphasised that in case the transaction and the amount is not denied by the respondent, mere filing of any summary suit or complaint before MRTPC is no ground to hold that admitted debt as bona fide dispute of debt. I am afraid that this judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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