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TMI Blog2012 (2) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... rrange storage of newsprint reels in its godown, insure the goods and to deliver the same to the Company. The petitioner agreed to perform this job on some terms and conditions for which an agreement was entered into. The terms and conditions of the agreement entered into by and between the Company and the petitioner reads as follows: - PRICE INCLUSIVE OF BASIC PRICE, EXCISE & TAX AT PREVAILIG RATE, CESS TRANSPORTATION FROM MILL TO DESTINATION 45 DAYS INTEREST, STORAGE CHARGES AND OUR SERVICE CHARGES. PAYMENT BY CASH OR CHAQUE IN OUR FAVOUR WITHIN 45 DAYS OF DISPATCH OR BEFORE DELIVERY OF GOODS WHICH EVER IS LATER. IN CASE PAYMENT IS DELAYED PAYMETS WILL BE FIRST ADJUSTED WITH OVERDUE INTEREST AND OVERDUE SERVICE CHARGES THEN WITH ORIGINAL BILL VALUE. VARIATION 10%[+/-] VARIATION IN QUANTITY & VALUE ALLOWED. OVER DUE INTEREST AT BANK RATE ON ALL OUTSTANDING RROM 45TH DAY FROM THE DATE OF DISPATCH OR FROM THE DATE OF DELIVERY. OVERDUE SERVICE CHARGES 1% PER MONTH (M.C.B.) ON ALL OUTSTANDING FROM 45TH DAY FROM THE DATE OF DISPATCH OR FROM THE DATE OF DELIVERY. DUE DATE DUE DATE WILL START AFTER 45 (FORTY FIVE) DAY FROM THE DATE OF DISPATCH. TRANSPORTATION FROM MILL TO D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yable by them to the petitioner towards cost of material, overdue interest and petitioner's charges. It was submitted that the Company failed and neglected to make payment against the outstanding dues for which the petitioner also could not pay its banker and the banker of the petitioner had stopped operation of the petitioner's bank account which had become irregular on account of failure on the part of the Company to make payment of its contractual dues to the petitioner. He also submitted that a meeting was held between the director of the petitioner as well as the Managing Director of the Company when they requested the petitioner for a discount in view of its precarious financial condition. By a letter dated 20th October, 2009 the petitioner wrote to the Company that a total sum of Rs.1,45,78,144.25 was due and payable by the Company to the petitioner as on 30th September, 2009. By another letter dated 20th October, 2009 the petitioner agreed to give the Company a lumpsum discount of Rs.18,00,000/- provided the Company pay off all its dues by 30th November, 2009 in two installments. In reply to that the Company by its letter dated 20th October, 2009 and 26th October, 2009 wrot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arged higher rates for newsprint from the Company than the petitioner had charged other consumers of newsprint over the past several years. It was submitted by Mr. Choudhury that the entire outstanding of the petitioner arises on account of the newsprint financed by the petitioner and no part whereof had been intended by the petitioner. It was submitted that the petitioner is entitled to and claims contractual overdue interest at the rate the petitioner have been charged its bankers, i.e. 15 per cent interest plus 2 per cent penal interest from the date of default until payment as well as overdue service charges at the rate of 1 per cent per month. It was submitted by Mr. Choudhury that the certificate issued by the Indian Overseas Bank, the banker of the petitioner, certifying the rate of interest charged has been disclosed by the petitioner in the petition. Thus, the petitioner claimed an outstanding on 30th November, 2009 calculated as per contract Rs.1,51,75,806.25 and also contractual overdue interest and contractual overdue service charges calculated from 1st December, 2009 until 15th March, 2010 amounting to Rs.10,99,487/- and the total unpaid amount comes to Rs.1,62,75,293. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. He also submitted that the terms and conditions of the contract is clear and specific and the price quoted in that agreement is the agreed price and the company did never raised any objection to the same. Mr. Choudhury submitted there is no scope for making any overcharge and this plea was an after thought and not at all a bona fide one. He submitted that the Company is unable to pay its debts and, therefore, the order of winding up should be passed in favour of the petitioner. It was submitted by Mr. Choudhury that after service of the statutory notice by the petitioner, the Company filed a civil suit before this High Court which is defective and no attempt was made to remove the defects to the said suit even after the present winding up proceedings were instituted. He submitted that the winding up notice issued on 9th December, 2009 and the suit was failed by the Company on 8th January, 2010, presented on 10th February, 2010and defects were removed on 24th March, 2010 thereafter the summons were issued. It was submitted by Mr. Choudhury that baseless allegations made in the suit which are identical to the defense raised by the Company in this proceedings. He submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... print on behalf of the Company by establishing letters of credit on behalf of the said Company to pay taxes, to pay transportation charges, etc. It was submitted by Mr. Mookherjee that statutory notice dated December 09, 2009 was served by the petitioner's Advocate. By another letter dated October 20, 2009 a meeting of the parties had been recorded and the petitioner conditionally offered a discount of Rs.18,00,000/- on its claim. The Company by its Advocate's letter dated December 22, 2009 disputed the petitioner's claim and asked for the petitioner to withdraw the notice. It was submitted that the Company had denied the claim of the petitioner and contended by its letter dated 26th October, 2009 that the petitioner had overcharged the Company and requested the petitioner to recast the accounts and the said letter superseded all prior balance confirmation that may have been given by the Company. It was also submitted that the Company also filed a suit in this Hon'ble Court being C.S. No.6 of 2010 in which the Company claimed against the petitioner herein a sum of Rs.1,42,57,132.50P.. The writ of summons has been duly served on the petitioner and the time to file the written statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to destination 45 days interest, storage charges and service charges as per the agreed terms of contract note signed by both petitioner and the Company. In the instant case the petitioner have acted in terms of the agreement and paid the agreed price to the mill and delivered the goods to the Company. It is evident from bare perusal of contract note that the agreed price per metric tonne mentioned therein not only includes basic value of the material charged by the mill but also includes tax at prevailing rates, transportation charges from the mill to Kolkata, 45 days interest, storage charges and agreed service charges and the said differential between the agreed amount stated in the contract and the basic ex-factory price charged by the mill represents the cost of the above. It is very important note that the price mentioned in the contract note was expressly granted by the Company, as would be evident from the document that it was confirmed by the Company's stamp and the signature on such contract. It also evident that the petitioner was not the newsprint seller but only a financier and the bank financing the purchases made by the Company and financing its other costs like tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company took this plea that the quoted rate was much higher than the prevailing market rate, but such plea is not tenable specially when the price rate is fixed by and between the Company and the mill. The function of the petitioner is to make payment and to get the supply and to deliver the same to the Company. In my view the alleged plea of overcharge or quoting higher rate is without any substance. Now the next question is whether on the facts of this case any bona fide dispute has been raised by the Company. From Company's side nothing was shown that the petitioner have demanded any amount more than what was agreed as per the agreed terms and conditions as mentioned in the agreement as quoted hereinbefore. After careful consideration of the submission and the materials disclosed before this Court it can safely be concluded that there is no bona fide dispute as regards the dues of the petitioning creditor. In my view mere filing of a suit is not enough to say that there is bona fide dispute as regards the claim of the petitioner or this application is an abuse of process of this Hon'ble Court. It is pertinent to mention that the Company did not make payment and, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,62,75,293.25 as detailed hereinbefore and interest at the rate of 15 per cent plus 2 per cent penal interest from the date of default until payment as well as overdue service charges at the rate of 1 per cent per month. The interest which is charged by the banker that is 15 per cent plus 2 per cent penal interest is fixed by this Court. Therefore, this winding up application is admitted. The winding up application is to be advertised ones in Telegraph and ones in Bartaman. The notice of the advertisement may be shortened at the discretion of the Advocate on Record of the petitioning creditor, but should contain the essential information. Publication in the official gazette is dispensed with such publication is to be made within a period of six weeks from the date of passing this order. Let this application appear as Company matter new after eight weeks. However, the Company is granted an opportunity to pay the dues as aforesaid by five monthly equal installments. First of such installment is to be paid by 15th February, 2012 and thereafter on the same date of each succeeding month. In case the installments are paid regularly and the dues are cleared then the order of advertiseme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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