9911796707
TMI Blog2012 (2) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... goods and to deliver the same to the Company. The petitioner agreed to perform this job on some terms and conditions for which an agreement was entered into. The terms and conditions of the agreement entered into by and between the Company and the petitioner reads as follows: - Price Inclusive of basic price, excise & tax at prevailig rate, cess transportation from mill to destination 45 days interest, storage charges and our service charges. Payment By cash or chaque in our favour within 45 days of dispatch or before delivery of goods which ever is later. In case payment is delayed payments will be first adjusted with overdue interest and overdue service charges then with original bill value. Variation 10%[+/-] Variation in quantity & value allowed. Over due interest At bank rate on all outstanding from 45th day from the date of dispatch or from the date of delivery. Overdue service charges 1% per month (M.C.B.) on all outstanding from 45th day from the date of dispatch or from the date of delivery. Due date Due date will start after 45 (forty five) day from the date of dispatch. Transportation From mill to destination to be arranged by you/us at our cost on your be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues to the petitioner. He also submitted that a meeting was held between the director of the petitioner as well as the Managing Director of the Company when they requested the petitioner for a discount in view of its precarious financial condition. By a letter dated 20th October, 2009 the petitioner wrote to the Company that a sum of Rs. 72,13,326/-was due and payable by the Company to the petitioner as on 30th September, 2009. By another letter dated 20th October, 2009 the petitioner agreed to give the Company a lump sum discount of Rs. 3,50,000/- provided the Company pay off all its dues by 30th November, 2009 in two instalments. In reply to that the Company by its letter dated 20th October, 2009 and 26th October, 2009 wrote to the petitioner that they have purportedly overcharged the Company for the newsprint supply and that other publications had purchased newsprint at lower rates, etc. 4. Mr. Choudhury, learned Counsel appearing for the petitioner submits that individual orders placed by the Company directly upon the mills concerned specially mentioning the price at which the Company had agreed to purchase the newsprint contracted for. The petitioner is not the newsprint sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eas Bank, the banker of the petitioner, certifying the rate of interest charged has been disclosed by the petitioner in the petition. Thus, the petitioner claimed an outstanding on 30th November, 2009 calculated as per contract Rs. 72,46,383/- and also contractual overdue interest and contractual overdue service charges calculated from 1st December, 2009 until 15th March, 2010 amounting to Rs. 7,18,346/- and the total unpaid amount comes to Rs. 79,65,229.81 It was submitted that the statutory period of 21 days had elapsed since the service of the said statutory notice but the Company not paid the amount claimed thereunder or any portion thereof or to secure or compound for the same to the reasonable satisfaction of the petitioner. 6. In support of his contention he submitted that the Company is unable to pay its debt and on several occasion adjournments were taken for coming to amicable settlement but nothing fruitful resulted. It was submitted by Mr. Choudhury that even on the prayer of the learned Advocates of the Company several sittings were held and discussions took place and ultimately on 30th August, 2011 Mr. Supriya Ranjan Saha, counsel appearing for the Statesman submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present winding up proceedings were instituted. He submitted that the winding up notice issued on 9th December, 2009 and the suit was failed by the Company on 8th January, 2010, presented on 10th February, 2010and defects were removed on 24th March, 2010 thereafter the summons were issued. It was submitted by Mr. Choudhury that baseless allegations made in the suit which are identical to the defense raised by the Company in this proceedings. He submitted that the dispute sought to be raised by the Company is completely sham and moonshine. He submitted that the payments have not been made by the Company, but in the suit filed by them they claimed a decree for Rs. 1,42,57,132.50P. allegedly on account of the overcharged amount from the Company. He submitted that payment has not been made so there is no question of claiming any amount against making any overcharge upon the Company. It was submitted that the financing of the newsprint purchased by the Company was admittedly by opening letters of credit and bank finance. The Company has specifically contracted to make payment of contractual overdue interest at the rate the petitioner has been charged by its bankers that 15 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and requested the petitioner to recast the accounts and the said letter superseded all prior balance confirmation that may have been given by the Company. It was also submitted that the Company also filed a suit in this Hon'ble Court being C.S. No. 6 of 2010 in which the Company claimed against the petitioner herein a sum of Rs. 1,42,57,132.50P.. The writ of summons has been duly served on the petitioner and the time to file the written statement had also expired and the suit is liable to be heard as an undefended suit. 10. Mr. Mookherjee submitted that the defense of the Company is mainly on three grounds viz. (a) the claim is bona fide disputed by the company, (b) the Company has not neglected to pay the sum claimed, (c) the winding up petition is an abuse of the process of this Court. Mr. Mookherjee submitted that no statutory presumption has been drawn in terms of Section 434(1)(a) of the Companies Act, 1956. He further submitted that even if there is a claim of the petitioner creditor exceeding Rs. 500/- and such claim is admitted but there is ground of establishing that there is a bona fide dispute as to the substantial part of the debt on which the winding up p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from bare perusal of contract note that the agreed price per metric tonne mentioned therein not only includes basic value of the material charged by the mill but also includes tax at prevailing rates, transportation charges from the mill to Kolkata, 45 days interest, storage charges and agreed service charges and the said differential between the agreed amount stated in the contract and the basic ex-factory price charged by the mill represents the cost of the above. It is very important note that the price mentioned in the contract note was expressly granted by the Company, as would be evident from the document that it was confirmed by the Company's stamp and the signature on such contract. It also evident that the petitioner was not the newsprint seller but only a financier and the bank financing the purchases made by the Company and financing its other costs like transport, tax at prevailing rate, cess, 45 days interest, storage charges, etc. The plea of overcharging as mentioned by the Company in its Affidavit in Opposition alleging therein that the overcharged amount to the tune of Rs. 3000/- to 4000/- per metric ton is also not correct because the amounts mentioned in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company. In my view the alleged plea of overcharge or quoting higher rate is without any substance. 14. Now the next question is whether on the facts of this case any bona fide dispute has been raised by the Company. From Company's side nothing was shown that the petitioner have demanded any amount more than what was agreed as per the agreed terms and conditions as mentioned in the agreement as quoted herein before. After careful consideration of the submission and the materials disclosed before this Court it can safely be concluded that there is no bona fide dispute as regards the dues of the petitioning creditor. In my view mere filing of a suit is not enough to say that there is bona fide dispute as regards the claim of the petitioner or it is an abuse of process of this Hon'ble Court either. It is pertinent to mention that the Company did not make payment and, therefore, there is no scope to claim any alleged overcharged amount by the Company. It is also not acceptable that the Company will make full payment and thereafter raise a claim for refund of the alleged overcharged amount. Moreover, the petitioner's claim is based on the agreed contractual terms and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per cent plus 2 per cent penal interest is fixed by this Court. 19. Therefore, this winding up application is admitted. The winding up application is to be advertised ones in Telegraph and ones in Bartaman. The notice of the advertisement may be shortened at the discretion of the Advocate on Record of the petitioning creditor, but should contain the essential information. Publication in the official gazette is dispensed with such publication is to be made within a period of six weeks from the date of passing this order. Let this application appear as Company matter new after eight weeks. 20. However, the Company is granted an opportunity to pay the dues as aforesaid by five monthly equal installments. First of such installment is to be paid by 15th February, 2012 and thereafter on the same date of each succeeding month. In case the installments are paid regularly and the dues are cleared then the order of advertisement would remain stayed permanently. In case any one of the installments is not paid the petitioner is permitted to publish the notice as directed herein above. 21. I make it clear that the findings and observations made in this judgment and order is restricted to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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