9911796707
TMI Blog2007 (6) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... Industrial Area, Delhi. In the year 1998, its registered office was re-located at 617, Civil Lines, Moga. The petitioner-firm is a commission agent having its work place at Julana Mandi (find) and is stated to have supplied wheat to the respondent-company. During the financial year 1997-98, it had supplied to the respondent-company 13,404.60 quintals of wheat in 14,117 bags for the value of Rs. 70,39,492.58 paise. There were similar transactions in respect of the year 1998-99. There are numerous payments made by the respondent-company to the petitioner-firm but balance payment of Rs. 17,33,082.34 paise is claimed to be outstanding amount. The petitioner-firm has claimed a sum of Rs. 17,33,082.34 paise as on September 30, 1999, as per the legal notice issued through counsel on October 1, 1999 (P4). After the service of notice the petition came up for hearing before the learned company judge, who passed an order on January 25, 2001, admitting the petition and also ordered its publication. Thereafter on August 24, 2001, an application under Order IX, rule 13 of the Code of Civil Procedure, 1908, was allowed subject to payment of Rs. 25,000 as costs. Consequently, the respondent-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g over the control of all the affairs of the company by the management, a balance-sheet was prepared. It has further been claimed that while preparing the balance-sheet, it did not take into account the arrangement and the settlement which had already been arrived at in respect of the petitioner-firm. Resultantly, the balance-sheet prepared on March 31, 1998, erroneously and incorrectly referred to the outstanding of the petitioner-firm as Rs. 10,49,793.44 paise instead of Rs. 5,07,243.46 paise. Therefore, it was claimed that on account of inadvertent mistake committed by the respondent-company, the petitioner-firm is trying to exploit the situation and there is a triable defence available. However, the petition was admitted again on October 5, 2001, by recording the finding that it is a case of acknowledged liability and the respondent-company has not been able to discharge its obligation and it was not in a position to pay its debts. It was further found on the basis of documents annexures P1 and P2 that the goods worth Rs. 70,39,492.58 paise were supplied out of which the petitioner-firm received an amount of Rs. 60,25,000 leaving a balance of Rs. 10,14,492.58 paise. The defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at principal amount of Rs. 10,14,486.92 paise has been paid and the question with regard to interest has to be decided. It is in this view of the matter that the question of interest survives for determination. The aforementioned facts conclusively establish that an amount of Rs. 10,14,486.92 paise was the principal amount which was outstanding as on March 31,1998 and the same was paid in April, 2006. Therefore, interest from April 1,1998, to March 31, 2006, is payable and the dispute which survives for consideration is in respect of rate of interest alone. Mr. B. Mohan, learned counsel for the petitioner-firm has argued that the rate of interest has been agreed between the parties. In that regard he has placed reliance on a communication dated February 28, 1995, (annexure P6, at page 147 of the paper book). The aforementioned communication has been addressed by the manager of the respondent-company, which is to the effect that after the expiry of 30 days of the purchase of wheat, interest at Rs. 1.50 per hundred per month was to be charged. The rate of interest was to go up to Rs. 1.60 per hundred per month after the expiry of 60 days. The aforementioned stipulation has been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest as per the rates indicated in the letter dated February 28, 1995 (P6) have been paid. Learned counsel has emphasised that the balance-sheet (P2) for the aforementioned period is an admitted document as per the admission order dated October 5, 2001, passed by the learned company judge and the appellate order dated January 9, 2002, passed by the Appellate Bench in Company Appeal No. 2 of 2002. He has then referred to the legal notice, dated November 10, 2001, sent by counsel for the respondent-company which is to the effect that the petitioner-firm was claiming the full amount of Rs. 24.95 lakhs as on March 31, 2001. Learned counsel has maintained that all these documents were produced in pursuance to order dated December 12,2002 and the claim of the petitioner-firm for payment of interest stand completely substantiated. Mr. B. Mohan, learned counsel for the petitioner-firm has also argued that once the money has been retained without any authority of law involving the petitioner-firm in series of litigation then the request of the respondent-company for reduction of rate of interest as stipulated in the letter dated February 28, 1995 (P6), is liable to be rejected and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion for Shri Deepak Garg to write such a letter on February 28,1995. Learned counsel has then referred to the admission order dated October 5, 2001, to show that the petitioner-firm had never conceded the rate of interest of 18 per cent, or 19.2 per cent, and it had only agreed to pay the rate of interest as per the usage of the mandi. Learned counsel for the respondent-company has then submitted that the balance-sheet as on March 31, 1997, (annexure "E"), which is purported to be signed by the proprietor, also raises a suspicion because the signatures do not match on the balance-sheet, profit and loss account and trading account, etc . He has emphasised that the letter dated November 24, 1997, with regard to submission of TDS form for an amount of-Rs. 12,500 (annexure " E " ) has not been pleaded nor any agreement with regard to mutual settlement of rate of interest has been pleaded. Mr. Chetan Mittal, learned counsel for the respondent-company has then submitted that in any case the rate of interest should not be more than prime lending rate because as per the facts and circumstances of this case the interest at 18 per cent, or 19.2 per cent, cannot be charged. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 SC 3411. In paragraph 8 of the judgment it has been laid down that the quantum of interest which a court may allow is governed by the facts of the case and not by any precedent. The aforementioned view is discernible from paragraph 8 of the judgment, which reads as under (page 3412) : "8. The facts narrated hereinabove clearly shows that the respondent has retained the money belonging to the appellant without authority of law and has driven the appellant to series of litigations, therefore, this fact itself should have been sufficient to refuse the request of the respondent made before the High Court for reduction of rate of interest. The quantum of interest a court may allow in a given case is governed by the facts of the case and not by any precedent law unless, of course, limited by a statue. If a court comes to the conclusion on a given set of facts, a party has been wrongly denied the use of its own money, it is the duty of the court to see that the said party is appropriately compensated. In the instant case, we are of the opinion that the respondent has deprived the appellant of its rightful use of the money ..." On examining the facts of the present case it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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