TaxTMI 
TaxTMI 
2012 (4) TMI 183
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....print reels in its godown, insure the 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 prevailing 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 m....
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....e by them to the petitioner towards cost of material, overdue interest and petitioner's charges. It was submitted that the Company failed and neglected to make payment against the outstanding dues for which the petitioner also could not pay its banker and the banker of the petitioner had stopped operation of the petitioner's bank account which had become irregular on account of failure on the part of the Company to make payment of its contractual 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 28th October, 2009 the petitioner wrote to the Company that a sum of Rs. 2,97,96,087.06 was due and payable by the Company to the petitioner as on 30th September, 2009. By another letter dated 28th October, 2009 the petitioner agreed to give the Company a lumpsum discount of Rs. 34,50,000/- 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 28th October, 2009 and 24th November, 2009 wrote to the....
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....and no part whereof had been intended by the petitioner. It was submitted that the petitioner is entitled to and claims contractual overdue interest at the rate the petitioner have been charged its bankers, i.e. 15 per cent interest plus 2 per cent penal interest from the date of default until payment as well as overdue service charges at the rate of 1 per cent per month. It was submitted by Mr. Choudhury that the certificate issued by the Indian Overseas 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. 3,29,39,867.00 and also contractual overdue interest and contractual overdue service charges calculated from 1st December, 2009 until 15th March, 2010 amounting to Rs. 28,33,268.00 and the total unpaid amount comes to Rs. 3,57,73,135.00. 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 petitio....
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....overcharge and this plea was an after thought and not at all a bona fide one. He submitted that the Company is unable to pay its debts and, therefore, the order of winding up should be passed in favour of the petitioner. 7. It was submitted by Mr. Choudhury that after service of the statutory notice by the petitioner, the Company filed a civil suit before this High Court which is defective and no attempt was made to remove the defects to the said suit even after 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 overcharge....
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.... statutory notice dated December 09, 2009 was served by the petitioner's Advocate. By another letter dated October 20, 2009 a meeting of the parties had been recorded and the petitioner conditionally offered a discount of Rs. 34,50,000/- on its claim. The Company by its Advocate's letter dated December 22, 2009 disputed the petitioner's claim and asked for the petitioner to withdraw the notice. It was submitted that the Company had denied the claim of the petitioner and contended by its letter dated 26th October, 2009 that the petitioner had overcharged the 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. 9. Mr. Mookherjee submitted that the defense of the Company is mainly on three grounds viz. (a) the c....
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....lusive of basic price, excise & tax at prevailing rate, cess, transportation from mill to destination 45 days interest, storage charges and service charges as per the agreed terms of contract note signed by both petitioner and the Company. In the instant case the petitioner have acted in terms of the agreement and paid the agreed price to the mill and delivered the goods to the Company. 11. It is evident 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. The amount mentioned in the contract note could not be the same as the amount mentioned i....
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....credit. A mutual, open and current account was maintained by the petitioner in respect of his dealings and transactions with the Company. After adjustment of those payments an amount of Rs. 2,97,96,087.06 was due and payable by the Company as on 30th September, 2009. Although, it was alleged that the petitioner wrongfully and/or illegally overcharged the Company for the newsprint supplied, there is nothing on record to show that the purported allegation of the Company is correct. On enquiry made by this Court the learned Senior Counsel appearing in support of the Company could not show any material and/or document on the basis of which the alleged plea of overcharging could be proved. Moreover the Company never questioned the contract nor the rates and/or the terms and conditions of the contract. The Company received the newsprint rolls as per terms and conditions of contract and utilised the same without any objection but took the pleas of overcharge when the demand for payment was made. Although, against the statutory notice the Company took this plea that the quoted rate was much higher than the prevailing market rate, but such plea is not tenable specially when the price rate i....
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.... is agreeable to pay an amount of Rs. 6.05 crores in full and final settlement of the claim made by the petitioner in the three winding up applications. However, it was submitted by the learned Senior Counsel that the Company would pay the aforesaid amount by easy installments but it was submitted that they are not agreeable to pay any future interest for the period during which the installments would be paid. The learned Counsel for the petitioner submitted by producing documents that the Bank is charging them 15 per cent interest plus 2 per cent penal interest, which the Company should pay, and for this reason the proposal of settlement failed. 16. From the facts of this case it can safely by concluded that there is no bona fide dispute about the amount receivable by the petitioning creditor. That the purported defense as taken in the Affidavit in Opposition is totally misconceived, sham and illusory and also not bona fide. It prima face appears that a sum of Rs. 3,57,73,135/- remained due and payable by the Company to the petitioner as on 15th March, 2010. 17. The Company is indebted to pay the sum claimed by the petitioner and, therefore, I prima face hold that the petiti....