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TMI Blog2013 (1) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... ly by the name of "Statesman" which had his age old repute and glory that was decaying resulting in acute financial stringency. Newsprint suppliers were reluctant to continue supply as their outstanding mounted up. The company approached the respondents for financial accommodation. The respondents were also in the business of trading of newsprint. They agreed to supply newsprint by procuring from the market. Instead of direct supply from the paper mills the supply was routed through the respondents inter alia on the following terms :- (i) The respondents would procure newsprint from the market and in turn would supply to the company that would be on forty five days credit. (ii) The respondents would charge one per cent service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions. Although the amounts, for which the winding up petitions were admitted, varied the reasoning given by His Lordship were identical. Hence, we intend to deal with all the three appeals by this common judgment. 4. If we go by the judgment and orders impugned, we find, the company raised a plea before His Lordship, the amount became disputed as the company later on came to know, respondents overcharged by raising inflated invoices and as such they became entitled to appropriate rebate not only in case of pending invoices but also in respect of bills and/or invoices already cleared by the company. Company in fact filed a suit inter alia claiming for damage in view of such fraudulent activity of the respondents. 5. His Lordship reje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it adjudicated on the rival claims. We adjourned the matter on more than one occasion. Lastly Mr. Abhijeet Chatterjee, learned senior counsel informed us that the company would not be in a position to pay or deposit Rs. 6.05 crores unless the respondent would agree to the same. Moreover they would not pay so in one go. Pertinent to note, the amount was offered in the later part of 2009 and early part of 2010 and even after two full years the company was not in a position to pay and/or deposit the said amount. In such circumstances we asked Mr. Chatterjee to conclude his argument so that we could dispose of the appeals finally. 7. Mr. Chatterjee handed over a written submission on behalf of the appellants. According to him, the total amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtent Rs. 6.05 crores. The learned Judge did not record the way the amount was explained in the written notes of argument handed over to us in court. The company also did not go back to the learned Judge by making application for correction of the judgment on that score. Once it was not done it is very difficult to go behind the acknowledgement of liability that too, not disputed at the relevant time. In course of hearing, Mr. Chowdhury handed over an auction notice wherefrom we find, the properties belonging to the respondents were put up for sale. Mr. Chowdhury would contend, such situation arose in absence of delay in clearing off the dues of the bank that the respondents could not effectively do in absence of a corresponding payment fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be clear the parties with their eyes wide open, agreed to the terms and conditions stipulated in the agreement. From the facts it is clear, the company was in financial stringency and their regular suppliers were reluctant to continue supply in view of huge outstanding. At that juncture the company approached the respondent for financial support. No commercial people would agree to support another party without any commercial gain. If the rate charged by the respondent was higher than the market rate the company was free to refuse to accept supply, they did not do so. Company would contend, they came to know at a later stage. We refuse to believe. The company was in business of publishing newspaper for almost a century. The main ing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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