Super Fine Meat Suppliers vs Bharat Hotels Ltd.
2006 Latest Caselaw 602 Del

JUDGMENT

S.N. Aggarwal, J.

1. This appeal under Section 483 of the Companies Act, 1956 has been filed by the appellant against an order dated 29.10.2003 passed by the learned Company Judge disposing of a winding up petition filed by the appellant under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956.

2. The factual matrix of the case is as follows:-

3. The appellant on 1.6.1997 had entered into an Agreement with the respondent for supply of mutton to it. The rates for supply of mutton agreed upon between the parties as mentioned in the Agreement dated 1.6.1997 were valid for a period of 12 months. The Agreement expired on 31.5.1998. The appellant supplied mutton to the respondent for another two months, that is, for June and July, 1998 also, though there was no fresh agreement regarding rates between the parties. The appellant had deposited Rs. 1.25 lacs with the respondent as security deposit at the time of entering into an Agreement on 1.6.1997. After the expiry of the Agreement on 31.5.1998, the appellant made supply of mutton to the respondent vide following three bills during June and July, 1998:-

  S.    Bill Date  Amount  Amount  Balance
No.  No.   (Rs.)  Received (Rs.) (Rs.) 
     
1.   002011   30.6.98   2,74,214   1,38,758        1,35,456 
2.   002014   15.7.98   1,65,599/-     -Nil-        1,65,599/-
2.   002015   31.7.98   1,25,416.50   -Nil-            1,25,416.50
                                                      _____________

                                        Total: Due Rs. 4,26,471.50

 

4. The amount claimed by the appellant vide aforementioned bills was at enhanced rates.  
 

5. As the respondent-Company did not pay the above bills in regard to supply of muttons made during June and July, 1998 and as it also did not refund the security deposit of the appellant, the appellant sent a statutory notice to the respondent on 21.9.1998 calling upon it to pay Rs. 5,96,471.50 which was inclusive of interest till that date. The break-up of the amount claimed by the appellant in its notice dated 21.9.1998 was as follows:-

  (i) Unpaid amount of three bills - Rs. 4,26,471.50
(ii) Refund of security deposit  - Rs. 1,25,000.00
(iii) Interest            - Rs.   45,000.00

 

6. Since the respondent did not pay the amount claimed by the appellant vide notice dated 21.9.1998, the appellant filed a winding up petition against the respondent under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 claiming itself to be an admitted and unpaid creditor of the respondent-Company.

7. The respondent in its reply to the winding up petition contended that it never agreed to pay enhanced rate for the mutton supplied by the appellant to it during June and July, 1998. According to the respondent, the appellant was obliged to supply the mutton at the rate agreed upon between the parties under the Agreement dated 1.6.1997. The respondent further contended that it has made payment to the appellant in respect of one bill dated 30.6.1998 at old rates in full and final settlement of the said bill. So far as the other two bills are concerned, it was contended that payment had been made to the appellant by the respondent at old rates during the pendency of the winding up petition before the Company Judge.

8. The appellant also filed a suit for recovery of the balance amount of the three bills pertaining to supply of mutton during the months of June and July, 1998 and the said suit is presently pending for adjudication in the District Court at Delhi.

We have heard learned counsel for the parties and have also requisitioned the original record of Company Petition in which the impugned order was passed and the same has been carefully perused by us.

9. Learned counsel for the appellant did not dispute before us that the security deposit of Rs. 1.25 lacs as well as the payment of all the three bills pertaining to supply of mutton during June and July, 1998 was made by the respondent to the appellant during the pendency of the winding up petition before the learned Company Judge. What has been contended by the learned counsel is that the Company Judge has confined discussion in the impugned order only regarding refund of security deposit and he did not deal with the liability of the respondent arising out of the three bills sent to the respondent at enhanced rates. He has contended that the appellant had sent a letter dated 25.5.1998 to the respondent informing it that after expiry of the Agreement on 31.5.1998, if the order for supply of mutton is given to some other party then, in that event, the appellant would be entitled to get enhanced rate in respect of the supply that may be made by it after the date of expiry of the Agreement.

10. Learned counsel for the appellant had also relied upon a letter dated 31.7.1998 written by the appellant to the respondent-Company (at page 20 in the file of Company Petition) and the statutory notice of demand dated 21.9.1998 and relying on these two documents, he contended that this Court should draw an adverse inference against the respondent-Company as it failed to send any reply to either of the above two letters.

11. On the other hand, learned counsel for the respondent drew our attention to the three bills received by the respondent from the appellant in respect of supply of mutton made during June and July, 1998 (at pages 106,107 and 108 of the file of the Company Petition) and relying on these three bills, she contended that the respondent-Company had made payment of all these three bills to the appellant and as such no amount is due and outstanding to the appellant from the respondent. She had further argued that the dispute regarding entitlement of the appellant to enhanced rates shall be decided in suit for recovery filed by the appellant which is pending adjudication in the District Court at Delhi.

12. To meet this argument of learned counsel for the respondent, learned counsel for the appellant referred to pages 22,23 and 24 from the file of the Company Petition and relying on the same he submitted that the appellant-Company had sent bills to the respondent-Company in respect of the supply made during June and July, 1998 at enhanced rates and according to learned counsel for the appellant, the respondent-Company has not made payment of the said bills as claimed therein. Learned counsel for the appellant had also argued that the respondent-Company admitted its liability to pay enhanced rates after the date of expiry of the Agreement which expired on 31.5.1998 as it failed to give any reply to the appellant's letters dated 25.5.1998 and 31.7.1998 and statutory notice dated 21.9.1998.

13. On giving our careful consideration to the above rival submissions advanced by learned counsel for the parties, we are not impressed with the arguments advanced on behalf of the appellant. We are of the view that the effect of non-reply to the appellant's letters dated 25.5.1998 and 31.7.1998 and the statutory notice dated 21.9.1998 will make the amount not paid by the respondent on account of enhancement of rates subsequent to the period of contract only a claim and not an admitted debt in terms of Section 433 of the Companies Act, 1956.

14. The findings of the learned Company Judge in respect of the dispute raised by the parties with regard to the three bills pertaining to supply of mutton by the appellant to the respondent-Company during June and July, 1998 are as follows:-

However, considering the facts and circumstances of the case and upon going through the records, it is proved and established that the claim of the petitioner for payment at enhanced rate for the mutton supplied after 1.6.1998 gives rise to a disputed question. As to whether or not there was a fresh agreement between the parties wherein both parties agreed for payment of the mutton supplied after 1.6.1998 at an enhanced rate is an issue which would arise for consideration and such issues which are raised are to be considered and adjudicated only after evidence is led by parties. The parties shall have to lead evidence to establish their respective cases in respect of the aforesaid issue as to whether or not the petitioner is entitled to receive amount at an enhanced rate for the mutton supplied for the subsequent period. The aforesaid aspect cannot be dealt with and decided in a petition of this nature and, therefore, the claim of the petitioner to the aforesaid extent cannot be decided in this case. The parties may agitate contentious issues relating to payment at an enhanced rate in the suit and get a decision in the suit, as the same are not decided in this proceeding.

15. We are in complete agreement with the findings of the learned Company Judge contained in the impugned order on the above aspect. We are of the view that the amount claimed by the appellant in the winding up petition by no means can be said to be an admitted liability of the respondent-Company. Hence, we do not find any infirmity or illegality in the impugned order of the learned Company Judge calling for an interference by this Court in exercise of its appellate jurisdiction.

16. For the foregoing reasons, we do not find any merit in this appeal and the same is hereby dismissed. No order as to costs.