Naptha Resins & Chemicals Ltd. vs Flow-Tech Air (P) Ltd.
2002 Latest Caselaw 1601 Del

JUDGMENT

Vikramajit Sen, J.

1. The facts that have emerged after hearing the learned counsel for the parties is that supplies were made by the Petitioner to the Respondent-company between November, 1995 and July, 1997, aggregating Rs. 68,56,071.00. Partial payments against these supplied were made from time to time. A photocopy of the Ledger is available on the pages 43 and 44 of the Court file showing the balance due from the Respondent to the Petitioner to be Rs. 41,47,187.00. This Ledger has been specifically mentioned since it is the contention raised on behalf of the Respondent that the interest component has not been reflected in the Ledger. This is not disputed. This was pointed out in order to buttress the argument that the claim of interest at the rate 25% per annum was unilaterally raised. There is also a photocopy of the Ledger for the period 1.4.2000 to 31.12.2000 in which the balance due is show as Rs. 35,21,428.00. It has been explained by learned counsel for the petitioner that this amount has been calculated after first adjusting the payments made towards interest, and thereafter towards the principal sum.

2. It is, however, not in dispute that cheques for a total sum of Rs. 46,93,000.00 have been given by the Respondent-company to the Petitioner on or about 31st March, 1998. As per the supplementary affidavit of Shri Harish Gulati dated 5th July, 2001 (pages 91-94) the break-up of this amount is as follows:

  Principal Amount  Rs. 34,94,957.00
Interst    Rs. 11,98,043.00
    _________________
Total    Rs. 46,93,000.00
    _________________


 

It has been explained by the learned counsel for the petitioner that the actual amount outstanding on that date as per the Petitioner's case was Rs. 46,95,541.00 and the parties arrived at a settlement for the sum of Rs. 46,93,000.00. It was consequent upon the settlement that cheques were paid by the Respondent-company.,

3. The defense put forward is that there was no agreement for payment of interest, either at the rate of 25% per annum or at any other rate. It has been contended that the principal amount, i.e., Rs. 34,94,957.00 has been paid and that there is no liability for the payment of interest of Rs. 11, 98, 043 or any lesser amount. Learned counsel for the petitioner, however points out that even in respect of the principal amount only a sum of Rs. 33,96,048.00 has been received by the petitioner. It has also been contended by learned counsel for the Respondent-company that the only written evidence available pertaining to the rate of interest of 25% is contained in the bills of the Petitioner received by the Respondent from time to time. It is contended that bills do not constitute an agreement between the parties. In this context, reliance has been placed on a decision of a Single Judge of the Rajasthan High Court in Kitply Industries Limited v. Hari Narain and Sons (P.) Ltd. 2001(3) Comp. L.J. 406 (Raj.) and to a Single Judge of the High Court of Karnataka in Jyothi Limited v. Boving Fouress Limited 2001(3) Comp LJ 413 (Karn.) As to the general principle that a bill or invoice would not per se constitute an agreement for payments of interest, I am in respectful agreement with these judgments. The distinguishing feature between the facts of those two cases and the present one is in the case at hand present case cheques had been furnished by the Respondent-company to the Petitioner for a total sum of Rs. 46, 93,000.00 This sum includes an interest component of Rs. 11,98,043.00. What is extremely important is that these cheques had been forwarded in March, 1998, that is, after supplies had been made and the Respondent-company was in default of payment of the total dues against those supplies. Therefore, in the present case there is independent evidence pointing to the fact that the parties had agreed to pay/charge interest on the principal sum. I am informed that the interest has been computed at the rate of 25% per annum. The cheques thus corroborate the Bills.

4. It appears that if the Petitioner's contention of adjusting payments received from the Respondent, firstly towards interest due and thereafter towards principal is given effect to, the amount that would be due are Rs. 35,21,428.00 as on December 31, 2000. It is this amount which has been claimed in the present petition.

5. Section 139 of the Negotiable Instruments Act, 1881 stipulates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in the previous Section for the discharge, in whole or in part, or any debt or other liability. What, therefore, emerges is that there can be no dispute as to the fact that a total sum of Rs. 46,93,000.00 required to be discharged by the Respondent-company, on the presumption of cheques for this amount having been furnished to the petitioner. In respect of the sum of Rs. 46,93,000.00 the controversy as to whether the petitioner legally permitted to adjust payments received by it firstly towards interest and thereafter towards principal, does not arise. this arises only if the claim of the Petitioner, viz, Rs. 35,21,428.00 as contained in the petition, comes up for consideration.

6. In these circumstances, there is no manner of doubt that the amount which is presently due from the Respondent-company to the Petitioner is Rs. 46,93,000.00 less the payments received after 31.3.1998. It has been clarified in paragraph-5 of the aforementioned Supplementary Affidavit that out of the aforementioned amount of Rs.46,93,000.00 the amount due is Rs. 13,56,952.00. It has been indicated that even the principal amount has not been wholly paid and that a sum of Rs. 1,58,909.00 is due in respect of the principal amount itself.

7. The petition is admitted. The Respondent-company is directed to deposit the sum of Rs. 13,56,952.00 being the amount outstanding in respect of the aggregate of the unpaid cheques furnished to the petitioner. It is clarified that this amount does not correspond to the amounts that would be due as per the Petitioner's statement ending on 31st December, 2000 by which it had adjusted payments received first against the interest and thereafter against the principal due, i.e. Rs. 35,21,428.00. The amount of Rs. 13,56,952.00 shall be deposited with the Registrar General of this Court within four weeks from today. If the amount is deposited within the aforementioned period, publication of citation shall not be carried out. However, on failure to make the deposit, citation be published in Hindustan Times (English) and Veer Arjun (Hindi), returnable on 16.12.2002.

8. Once the deposit is made, the Court will consider whether it should be held to the credit of a suit, if filed by the Petitioner, thereafter, in respect of the claim in the petitio, or to be released to it in full and final settlement of all its dues. The complete settlement would obviously be dependent on a consensus being reached.

9. Learned counsel for the Respondent further submits that the Respondent-company has approached the BIFR. This only fortifies the conclusion already arrived at that the winding-up petition be admitted. In these circumstances in my view it may even be expedient to appoint a Provisional Liquidator forthwith. However, a decision on this question is deferred till the next date of hearing.

10. Renotify on 16.12.2002.