9911796707
TMI Blog2012 (10) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... balance remained to be unpaid. The statutory notice was accordingly issued for ₹ 32,78,443/. The Company simply denied the liability in all respects. There is nothing on record that at any point of time, the Company has admitted the liability. ( 4. ) The clauses of the agreement were read and referred by both the counsel. The Agreement itself shows that both the parties are required to comply with their respective obligations. The Consultancy Agreement itself means the reciprocal obligation and the performance of their individual part at every stage. This Agreement was admittedly for the particular project. The Financial Advisor Agreement, therefore, required to act upon continuously till the completion of the project and in a giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise. I further say that the Petitioner failed to carry out any work strictly in terms of the said Revised Mandate letter and failed to render any professional services in relation to SPV structuring. Pre Due Diligence and Definitive Documentation strictly in accordance with the terms of Revised Mandate. The said fact was brought to the notice of concerned person at various occasions however, despite the same, the Petitioner defaulted and failed to perform its obligation strictly in accordance with the Revised Mandate and it is on that basis that the Respondent withheld the payment of ₹ 10,11,240/ towards the last three invoices raised by the Petitioner for the months of July to September 2008. The payment of invoice dated March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles laid down in the abovementioned judgment have again been reiterated by this Court in Mediquip Systems (P) Ltd. v. Proxima Medical System Gmbll, 2005 7 SCC 42, wherein this Court held that the defence raised by the appellant Company was a substantial one and not mere moonshine and had to be finally adjudicated upon on the merits before the appropriate forum. The abovementioned judgments were later followed by this Court in Vijay Industries v. NATL Technologies Ltd., 2009 3 SCC 527 23 The principles laid down in the abovementioned cases indicate that if the debt is bona fide disputed, there cannot be 'neglect to pay' within the meaning of Section 433 (1)(a) of the Companies Act, 1956. If there is no neglect, the deemin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence, basically when there is nothing on referred and/or relied to point out that the amount so claimed was admitted and/or crystallized and/or there is acknowledgment of the liability. The moment there is a denial, the burden lies upon the Petitioner to show on record that the amount was due and payable, even on the date of the demand. ( 12. ) In the present case, the foundation is the Consultancy Agreement between the parties, where it was agreed, as per the Petitioner, that the Petitioner would get a guaranteed fee of ₹ 50 lacs, which was payable on a monthly basis at the rate of ₹ 3 lacs per month, at least for 12 months, or at the time when the investment size is achieved and/or if the agreement is revoked at Samira' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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