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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 ..... :- 8-2-2012 - Justice Ashoke Kumar Dasadhikari, J. For the Petitioner : Mr. Rudradeb Choudhury, Adv., Mr. Deepnath Roychoudhury, Adv. For the Respondent : Mr. S. B. Mookherjee, Sr. Adv., Mr. S. R. Saha, Adv. ASHOKE KUMAR DASADHIKARI, J. :- This winding up application is coming up for admission. The petitioner has a letter of credit limit from its bankers and establishes of credit on behalf of its customers or otherwise arrange finance when the customer do not have means to make immediate payment for goods to be purchased by them. Petitioner also stores and handles newsprint for its customers. Being approached by the Company from time to time and being informed by the Company that they had directly placed orders on different mills and have purchased newsprint but did not have the fund to pay the basic price of such goods, taxes, transportation costs, etc., the petitioner agreed to procure the newsprint from such mills upon making all payments and to arrange 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LOSSES AND/OR DAMAGES IF SO OCCURS DUE TO YOUR NON-PAYMENT AND/OR ACT OTHERWISE. B) IN CASE YOU FAIL TO LIFT MATERIAL WITHIN 90 DAYS FROM THE DATE OF ARRVAL AGAINST PAYMENT OF ALL COST WE MAY SALE THE MATERIAL TOWARDS REALISATION OF OUR DUES AND IS ANY VARIATION IN REALISATIN THE SAME WILL BE TO YOUR ACCOUNT BE IT HIGHER OR LOWER AND ALL STATUTORY LIABILITIES WILL BE TO YOUR ACCOUNT. OTHERS YOU MAY ESTABLISH/PROVIDE DISCOUNTABLE USANCE L/C IF REQUIRED BY YOU FOR PAYMENT OF OUR DUES. L/C DISCOUNTING CHARGES ON OUR ACCOUNT. JURISDICTION ALL DISPUTES SUBJECT TO KOLKATA HIGH COURT JURISDICTION ONLY. Mr. Chowdhury learned Counsel appearing for the petitioner submitted that as per the agreed terms and conditions the petitioner took delivery of newsprint rolls from the mill upon payment of the bills and supplied the same to the Company. It was further submitted by Mr. Choudhury that by a letter dated June 11, 2009 the Company have confirmed that an amount of Rs.66,27,163/- (rupees sixty six lakhs twenty seven thousand one hundred sixty three) is payable by them to the petitioner towards cost of material, overdue interest and petitioner s charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and owing to the petitioner from the Company as on 30th November, 2009 in terms of the diverse contracts entered into by and between the petitioner and the Company. The offer of discount as offered by the petitioner conditional upon the Company paying of its entire dues in terms of thereof and no longer remained in force as the Company failed to comply such condition. It was submitted that the Company failed and neglected to make payment to petitioner s dues and a statutory notice under Section 434 of the Companies Act, 1956 demanding the aforesaid sum of Rs.1,51,73,185.62 together with contractual interest and contractual overdue service charges calculated from 1st December, 2009 until the date of payment was claimed and the said notice was duly served upon and received by the Company as its registered office on 9th December, 2009. The Company duly replied to the said notice by the letter dated 22nd December, 2009 through its Advocate and in the reply it was wrongfully alleged that the petitioner had been acting as an intending agent of various newspaper mills and had purportedly charged higher rates for newsprint from the Company than the petitioner had charged other consumers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Monday. Ultimately the Company through their learned Senior Counsel Mr. S. B. Mookherjee submitted that the Company is agreeable to make payment as settled but they will make payment by easy installments and they will not pay any further interest on the unpaid amount during the period of making installment payments. It was submitted by Mr. Choudhury that his client is required to pay the interest as fixed by Indian Overseas Bank for the overdrawn amount and, therefore, the Company is to pay interest at the rate which is fixed by the Bank for the unpaid amount till the date of payment. Mr. Choudhury submitted that there is no bona fide defense on the part of the Company specially when the basic price was fixed by the Company when they placed order for supply of newsprint before the mill. The petitioner has no roll to play there. The petitioner is to pay the price as agreed with other taxes and/or cess and also for carrying the goods from the mill to godown and thereafter supply the same to the Company and there is no scope to increase the basic charges and/or rates as alleged by the Company. He also submitted that the terms and conditions of the contract is clear and specific and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annum. It was submitted that the petitioner will be required to pay its bankers at the rate of 17 per cent per annum compounded monthly. It was submitted that if the Company is directed to pay at any lesser rate the same would result the petitioning creditor not being able to pay its bankers resulting the mortgage immovable properties being sold under securitisation Act. Mr. Choudhury in support of his contentions relied on the following judgments: - 1. AIR 1971 Supreme Court 2600 (M/s. Madhusudan Gordhandas Company Vs. Madhu Woolen Industries Private Ltd.), 2. 1962 Vol. 2 W.L.R. 38, 3. 58 Company Cases Page 417 (Mukand Iron And Steel Works Ltd. Vs. Karnataka Steel And Wire Products Ltd. Others), 4. 62 Company Cases Page 239 (State Bank of India Vs. Hegde And Golay Ltd.), 5. 48 Company Cases Page 604 (All India General Transport Corporation Ltd. Vs. Raj Kumar Mittal), 6. 41 Company Cases Page 174 (Ofu Lynx Ltd. Vs. Simon Carves India Ltd.). Mr. S. B. Mookherjee learned Senior Counsel, appearing on behalf of the Company submitted that the petitioner financed the purchase of newsprint on behalf of the Company by establishing letters of credit on behalf of the said C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in support of his submissions: - (a) 23 CWN 844, (b) 56 CWN page 29, (c) 35 Company Cases 456, (d) 66 Company Cases 634, (e) 103 Company Cases 107, (f) 114 Company Cases 721, and 2005 Vol. 4 CHN 343, (g) AIR 77 Supreme Court 577, (h) 57 Company Cases 503. In these circumstances Mr. Mookherjee submitted that the winding up petition should be taken of the file and dismissed with costs. Although no Affidavit-in-Opposition was filed by the Company but the learned Counsel appearing for both parties adopted same argument as advanced in C.P. No. 78 of 2010. The plea of overcharge raised by Mr. S. B. Mookherjee, learned Senior Counsel appearing for the Company is taken up first for consideration by this Court. I have already quoted the terms and conditions of the contract hereinbefore. The terms and conditions of the contract are very specific. It appears that the Company itself placed the orders with the mills on an agreed price between them and the petitioner Company financed such purchase by paying the price inclusive of basic price, excise tax at prevailing rate, cess, transportation from mill to destination 45 days interest, storage charges and service charges as per the agreed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the petitioner from the Company for which the Company was given credit. A mutual, open and current account was maintained by the petitioner in respect of his dealings and transactions with the Company. After adjustment of those payments an amount of Rs.1,62,75,293.25 was due and payable by the Company as on 15th March, 2010. Although, it was alleged that the petitioner wrongfully and/or illegally overcharged the Company for the newsprint supplied, there is nothing on record to show that the purported allegation of the Company is correct. On enquiry made by this Court the learned Senior Counsel appearing in support of the Company could not show any material and/or document on the basis of which the alleged plea of overcharging could be proved. Moreover the Company never questioned the contract nor the rates and/or the terms and conditions of the contract. The Company received the newsprint rolls as per terms and conditions of contract and utilised the same without any objection but took the pleas of overcharge when the demand for payment was made. Although, against the statutory notice the Company took this plea that the quoted rate was much higher than the prevailing m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the petitioner in the three winding up applications. However, it was submitted by the learned Senior Counsel that the Company would pay the aforesaid amount by easy installments but it was submitted that they are not agreeable to pay any future interest for the period during which the installments would be paid. The learned Counsel for the petitioner submitted by producing documents that the Bank is charging them 15 per cent interest plus 2 per cent penal interest, which the Company should pay, and for this reason the proposal of settlement failed. From the facts of this case it can safely by concluded that there is no bona fide dispute about the amount receivable by the petitioning creditor. That the purported defense as taken in the instant case is totally misconceived, sham and illusory and also not bona fide. It prima face appears that a sum of Rs.1,62,75,293.25 remained due and payable by the Company to the petitioner as on 15th March, 2010. The Company is indebted to pay the sum claimed by the petitioner and, therefore, I prima face hold that the petitioner is entitled to get a sum of Rs.1,62,75,293.25 as detailed hereinbefore and interest at the rate of 15 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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