9911796707
TMI Blog2016 (5) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed interest albeit for the first time by the statutory notice @ 24% per annum. We are, however, not inclined to enter into the question as to whether the appellant is also liable to pay interest to the respondent. The learned Company Judge has not referred to the issue of interest. Further, the respondent has neither sought a clarification from the learned Judge regarding the quantum to be paid by the appellant to the respondent nor filed an appeal on the ground that the learned Judge has not taken into consideration the element of interest. The question of interest is, therefore, kept open. In the circumstances, the appeal is dismissed and the respondent shall be entitled to retain the amount paid pursuant to the order dated 24.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upheld. 4. There indeed were disputes regarding the quality of a part of the consignment. However, admittedly, the respondent granted the appellant credit in the sum of ₹ 6,22,073/- in respect of the goods that were returned by the appellant to the respondent claiming the same to be defective. The respondent also granted the appellant credit in the sum of ₹ 5 lacs on account of the dispute regarding the quality of a further quantity of the said goods. 5. The question is whether there is a bona fide dispute as regards the rest of the consignment in respect whereof the respondent makes its claim. 6. The appellant relies upon a statement of account for the period 01.04.2007 to 27.05.2009 prepared by the respondent which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 to the statutory notice does not refer to an oral agreement much less an agreement by the respondent to pay the appellant compensation for the alleged defective goods. This belies the defence now raised in the reply. 9. There is yet another fact which clearly disentitles the appellant to any credit in respect of the balance goods. The appellant, admittedly, retained the goods and, in fact, used the goods, namely, synthetic yarn, in the manufacture of its products, such as, blankets. Having done so, the appellant cannot refuse to pay for the same. If the goods were defective, the appellant ought to have rejected the same. Having utilized the raw material supplied by the respondent, it is now not even possible for the appellant to retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a debt has not been specifically or impliedly admitted a petition for winding up is not maintainable. We agree with Mr. Amandeep Singh that such a view would render the provisions of Sections 433 and 434 of the Companies Act nugatory despite the fact that the company raises no bona fide dispute whether of law or of fact. A company can hardly resist a winding up petition even where the debt is established merely on the ground that it has not admitted the debt. A view to the contrary would result in a company being able to resist a well-founded claim without even a false denial of its liability. 13. It was then contended that the learned Judge has not specified the extent of the appellant s liability. As we mentioned earlier, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent mentioned in the impugned order. 16. The invoices do not provide for interest. Nor is there any other document or agreement that provides for interest. However, the respondent claimed interest albeit for the first time by the statutory notice @ 24% per annum. We are, however, not inclined to enter into the question as to whether the appellant is also liable to pay interest to the respondent. The learned Company Judge has not referred to the issue of interest. Further, the respondent has neither sought a clarification from the learned Judge regarding the quantum to be paid by the appellant to the respondent nor filed an appeal on the ground that the learned Judge has not taken into consideration the element of interest. The questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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