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TMI Blog2012 (4) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the dues as aforesaid by five monthly equal installments. - C.P. NO. 78 OF 2010 - - - Dated:- 8-2-2012 - ASHOKE KUMAR DASADHIKARI, J. Rudradeb Choudhury and Deepnath Roychoudhury for the Petitioner. S.B. Mookherjee and S.R. Saha for the Respondent. JUDGMENT 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ou you will always keep up indemnified against such 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 arrival 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. 1. 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. 2. It was further submitted by Mr. Choudhury that by a letter dated June 11, 2009 the Company have confirmed that an amount of Rs. 3,18,34,478/- (rupees three crore eighteen lakhs thirty four thousand four hundred and seventy eight) is payable by them t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3,28,58,899/- 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 of newsprint over the past several years. 4. 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 6. 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 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 overcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC), 2. 1962 Vol. 2 W.L.R. 38, (sic) 3. Mukand Iron Steel Works Ltd. v. Karnataka Steel Wire Products Ltd. [1985] 58 Comp. Cas. 417 (Kar.). 4. State Bank of India v. Hegde Golay Ltd. [1987] 62 Comp. Cas. 239 (Kar.) 5. All India General Transport Corporation Ltd. v. Raj Kumar Mittal [1978] 48 Comp. Cas. 604 (Cal.) 6. Ofu Lynx Ltd. v. Simon Carves India Ltd. [1971] 41 Comp. Cas. 174 (Cal.) 8. 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 Company to pay taxes, to pay transportation charges, etc. It was submitted by Mr. Mookherjee that statutory notice dated December 09, 2009 was serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishnaswami [1965] 35 Comp. Cas. 456 (SC), (d) State Trading Corpn. of India Ltd. v. Punjab Tanneries Ltd. [1989] Comp. Cas. 634 (Punj. Har.), (e) J.G. Finance Ltd. v. Jamna Auto Ltd. [2001] 103 Comp. Cas. 107/29 SCL 325 (Punj. Har.), (f) Rediffusion Dentsu, Yung Rubi Cam (P.) Ltd. v. Solidaire India Ltd. [2003] 114 Company Cases 721/43 SCL 737 (Mad.), and 2005 Vol. 4 CHN 343, (g) Mechalec Engg. Mfg. v. Basic Equipment Corpn. AIR 1977 Supreme Court 577, (h) Calcutta Chemical Co. Ltd. v. Krishna Das Pal [1985] 57 Comp. Cas. 503 (Cal.). In these circumstances Mr. Mookherjee submitted that the winding up petition should be taken of the file and dismissed with costs. 10. 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, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e price and other charges to the petitioner. It appears from the agreement annexed to the petition that the price per metric ton was fixed by the Company is Rs. 28,750/-and such price include excise and tax at the prevailing rate, cess, transportation from mill to destination, 45 days interest, storage charges and service charges. In case of payment is made after 45 days payments will by first adjusted with the overdue interest and over due service charges then with original bill value. The agreement clearly stipulates the overdue interest, overdue service charges, etc. Therefore, the demand is raised on that basis which is lawful and valid. It appears from the letter dated June 11, 2009 written by the Company to the petitioner that as on 30th April, 2009 an amount of Rs. 3,18,34,478 (rupees three crore eighteen lakhs thirty four thousand four hundred and seventy eight) is payable by the Company towards cost of material, overdue interest and petitioner's charges. Therefore, the Company itself admitted its dues which are to be paid to the petitioner. It appears that some payments were received by the petitioner from the Company for which the Company was given credit. A mutual, open ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the alleged overcharged amount. Moreover, the petitioner's claim is based on the agreed contractual terms and as such there cannot be bona fide dispute as regards the claim of the petitioner. Thus, there is no scope to hold that this petition is an abuse process of this Court in any manner. 14. In my view the purported letter recalling the confirmation of accounts by the Company was issued for avoiding payment of legitimate dues of the petitioner. Different judgments were cited by the learned Senior Counsel appearing for the Company in support of their defence. There is no dispute as regards the proposition of law settled therein but in the facts and circumstances of the present case the same are not applicable. There is no doubt that the Company failed and neglected to pay the dues of the Petitioner Company. 15. It is pertinent to mention that when the three winding up applications were heard by this Court, the learned Counsel appearing for the Company took several adjournments for settling the matter and the parties also discussed in between themselves and ultimately a suggestion was made by the learned Senior Counsel for the Company that his client is agreeable to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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