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TMI Blog2015 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ears that the appellant in this appeal accepted the said two demand drafts for ₹ 75 lac and ₹ 25 Lac against six of the said twenty nine invoices . According to Mr. Vinayak the respondent in this appeal had issued the said two post dated cheques of ₹ 4,00,06,655.52/- and ₹ 1,00,000,536 in acknowledgement of their dues to the appellant in this appeal for factoring said twenty nine and other invoices. However, when the respondent forwarded the said demand drafts of ₹ 75 lacs and ₹ 25 lacs respectively, there was no mention about any specific invoice. Thus, he contended, it was within the right of the appellant in this case to appropriate the said sum of ₹ 1 crore said by the said in respect of some of the said twenty nine bills. Thus, once the respondent had issued the said two post dated cheques for a total sum of ₹ 5,00,07,191/-, even after giving credit to the payment of the said sum of ₹ 1 crore, a sum of ₹ 4,00,06,655.52/- still remains due and payable by the respondent to the appellant. We find merit in such contention made on behalf of the appellant in this appeal. - Decided in favour of appellant. - APO 452 of 2014, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 19, 2009 the borrower company informed the appellant, the purchaser of the execution of the said factoring agreement and that it has received a sum of ₹ 4,00,06,655/- from the respondent on account of specific outstanding twenty nine invoices raised on the appellant. The said letter irrevocably authorized the appellant company to make all payments, in respect of the said twenty nine invoices and future invoices directly to the respondent. By a letter dated November 19, 2009 addressed to the respondent,(at page 103 of Vol 1 of PB) the appellant confirmed the supply of materials from the borrower company and acknowledged and agreed to make payment, on account of the said twenty nine invoices directly to the respondent. Along with the said letter the appellant forwarded to the respondent a post dated cheque of ₹ 4,00,06,655.52/- towards payment of the said twenty nine invoices raised by the borrower company. Subsequently, the respondent also factored other invoices raised by the borrower company on account of supply made to the appellant and a further sum of ₹ 1,00,00,536/- became payable by the appellant to the respondent. By a letter dated February 19, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. By a notice dated May 28, 2010, the respondent called upon the appellant to pay the said sum of ₹ 4,00,06,655.52/- together with interest thereon. The appellant through its advocate replied to the said notice of the respondent and denied any liability to pay to the respondent. The respondent filed an application being C.P No. 591 of 2011 before this Court, praying for winding up of the appellant company. By an order dated January 30, 2013, the said winding up application was rejected by a learned Single Judge, on the ground of absence of proper service of the statutory notice, but with an observation that the said order will not preclude the respondent herein instituting fresh proceedings against the appellant. The respondent issued a fresh notice dated March 5, 2013, under Section 434 of the Companies Act, 1956, calling upon the respondent/ appellant to pay the said sum of ₹ 4,00,06,655.52/- together with interest thereon at the rate of 24 % p.a. till the date of payment. By a letter dated March 25, 2013 the appellant through its advocate replied to the said notice dated March 5, 2013 denying their liability to pay any money to the respondent and alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng up application filed by the respondent involved disputed questions of fact and the learned Single Judge committed an error in admitting the application. Mr. Talukdar first contended that the appellant had no liability to make any payment to the respondent as it was not a party to the said factoring agreement. He urged that the appellant had never accepted assignment of any liability to make any payment to the respondent on account of the said twenty nine invoices raised by the said borrower company upon the appellant. Mr. Talukdar relied on a statement of the bank account of the appellant, disclosed before the learned Single Judge by way of a supplementary affidavit and contended that the appellant had already paid a sum of ₹ 3.85 crores to the borrower company which sum, according to him, the said borrower company was liable to pay to the respondent. He relied on clause 4.2 of the said factoring agreement and submitted that as per the said clause the Borrower Company is holding the said sum of ₹ 3.85 crores in trust for the respondent and the respondent is to recover its dues from the borrower company. He further argued that through the said two demand drafts both d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yak, learned Advocate appearing on behalf of the respondent submitted that in view of the said notice of assignment of debt dated November 19, 2009 issued by the said borrower company to the appellant and the letter dated November 19, 2009 issued by the appellant acknowledging and agreeing to make payment directly to the respondent on account of the said borrower company and issuance of the said post dated cheques of ₹ 4,00,06,655.52/- and ₹ 1 crore, the defence sought to be raised by the appellant, that it had no liability to make any payment to the respondent on account of the said invoices raised by the borrower company, is nothing but an after thoughts and the same lacks bona fide. So far as the contention of the appellant that they had already paid a sum of ₹ 3.85 crores to the said borrower company on account of the said invoices in question and that the same would be evident from the statement of the bank account, Mr. Vinayak submitted that the respondent/ creditor was never informed of such alleged payment nor there is any proof that such payments from the respondent to the said borrower company were in respect of the said twenty nine invoices. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the borrower company. They also made over the post dated cheque of ₹ 4,00,06,655.52/- to the respondent towards payment against on account of twenty nine invoices specified in Annexure 1 to the said letter. It is further evident that apart from the said sum of ₹ 4,00,06,655.52/- on account of the said twenty nine invoices raised by the borrower company, the appellant issued another post dated cheques of ₹ 1 crore in favour of the respondent on account of the some fresh invoices raised on them by the said borrower company which were also factored by the respondent. By the said letter dated February 19, 2009 the appellant company admitted to have issued the said two post dated cheques for ₹ 4,00,06,655.52/- and ₹ 1,00,000,536/- on account of the respondent having factored invoices of the borrower company raised on them and further requested the respondent to present the said cheque of ₹ 4,00,06,655.52/- on March 13, 2010. All these evidently show, the appellant company accepted their obligation to make payment to the respondent on account the said invoices raised on them by the borrower company. The second defence of the appellant is sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the respondent to pay the said sum of ₹ 4,00,06,655.52/-. In the said notice the respondent also stated that with regard to the factoring transaction for ₹ 1,00,000,536/- covered by the said cheque dated February 23, 2010, by two demand drafts for ₹ 75 lacs and 25 lacs the appellant company has already paid its dues. By a letter dated March 25, 2013, appearing the appellant company through its advocate replied to the said notice dated March 5, 2013 and alleged that they had paid all monies to the borrower company and as such the respondent should recover the said sum from the borrower company. However, once again in the said letter dated March 25, 2013 there was no mention of the particulars of the payment alleged to have been made by the appellant company to the borrower. In the mean time, when the Managing Director of the appellant appeared before the learned Judicial Magistrate, he made over three bank drafts for a sum of ₹ 30 lacs issued by the banks from Kolkata, in favour of the respondent and made an express admission of the liability of the appellant to the respondent. This admission of the Managing Director before the said Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,655/-. The learned Single Judge admitted the application for ₹ 3,00,06,655/-, as from the documents disclosed it appears that the appellant in this appeal accepted the said two demand drafts for ₹ 75 lac and ₹ 25 Lac against six of the said twenty nine invoices . According to Mr. Vinayak the respondent in this appeal had issued the said two post dated cheques of ₹ 4,00,06,655.52/- and ₹ 1,00,000,536 in acknowledgement of their dues to the appellant in this appeal for factoring said twenty nine and other invoices. However, when the respondent forwarded the said demand drafts of ₹ 75 lacs and ₹ 25 lacs respectively, there was no mention about any specific invoice. Thus, he contended, it was within the right of the appellant in this case to appropriate the said sum of ₹ 1 crore said by the said in respect of some of the said twenty nine bills. Thus, once the respondent had issued the said two post dated cheques for a total sum of ₹ 5,00,07,191/-, even after giving credit to the payment of the said sum of ₹ 1 crore, a sum of ₹ 4,00,06,655.52/- still remains due and payable by the respondent to the appellant. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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