TaxTMI 
TaxTMI 
2018 (1) TMI 773
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....cord of this court shows no rejoinder has been filed. Learned senior counsel for respondent submits that a copy of the rejoinder filed by the petitioner has been received by the respondent. The petitioner has placed on record a copy of the rejoinder. The same is taken on record. Registry may scan the same and place it on record. 3. The case of the petitioner is that sometime in 2001, NTPC was planning to set up power plants in India to further increase their power generation capacity. The respondent company was planning to expand its base in India. The parties accordingly entered into a consultancy agreement dated 20.08.2003 whereby the petitioner company agreed to provide professional services for advising the respondent company regarding....
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....04 and that is why interest is being claimed from the said date. To support his contention, reliance is also placed on the statutory legal notice sent by the petitioner on 05th July, 2016 where again the petitioner has sought interest @ 18 per cent per annum from 2005 till date on receipt of payment. Learned senior counsel for the respondent has also submitted that it is for the petitioner to file a suit for recovery and take advantage of section 14 of the Limitation Act as per law. (iii) It is pleaded that the agreement was valid only upto 2008. Reliance is placed on clause 4 of the agreement which states that the agreement between the parties is valid for a period of 5 years from the date of its signing. It is pleaded that as the agreeme....
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....uch communication was received by the petitioner. He further pleads that in any case, the said communication dated 14.05.2009 is not a categorical rejection of the claim of the petitioner. 7. I may now see the agreement between the parties. Clause 4 of the agreement dated 20.08.2003 as follows: "4. CONSULTANCY FEE AND PAYMENT For the services rendered by the consultant under the present Agreement the Customer is to pay a total fee amounting Rs. 126,569,100 (one hundred twenty six million five hundred sixty nine thousand one hundred only) payable after the receipt of the money from the final Customer against an invoice submitted by the Consultant. The above amount shall be paid 50 % after the receipt of an advance from the final customer ....
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....t. A plea of limitation is a mixed question of law and fact. The question whether the words "barred by law" occurring in Order VII Rule 11(d) CPC would also include the ground that it is barred by law of limitation has been recently considered by a two Judge Bench of this Court to which one of us was a member (Ashok Bhan J.) in Civil Appeal No. 4539 of 2003 (Balasaria Construction Pvt. Ltd. v. Hanuman Seva Trust and Ors.) decided on 8.11.2005 and it was held: - After hearing counsel for the parties, going through the plaint, application under Order 7 Rule 11(d) CPC and the judgments of the trial court and the High Court, we are of the opinion that the present suit could not be dismissed as barred by limitation without proper pleadings, fra....
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....ion of fact in the present proceedings. 12. As far as the second aspect is concerned, namely, the communication of 14.05.2009, the said communication reads as follows: "We are in receipt of the statement of account vide your above cited letter and our comments according to our books are as under: a) Total amount of Rs. 63,284,534 received by the Link Engineers is matching with our books. The balance amount of Rs. 63,284,566/- claimed as due is not matching with our books and accordingly nothing more is due and payable, the same being nil. Further, there is no document to support the same. b) Payment of USD 150,000 claimed as due for additional services is not correct. We do not find any document or contract in our records to substantiat....
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....65] 35 CompCas 456 (SC) /MANU /SC /0369 /1965, held as follows: "13. It is well-settled that "a winding up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the process of the court." 16. The Supreme Court in Madhusudan Gordhandas & Co. vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600/ (MANU/ SC/0033 /1971), held as follows: "21.Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has ....