Rydak Syndicate Ltd. vs Roshanlal Agarwal

Pinaki Chandra Ghose, J.—This appeal is arising out of a judgment and/ or order dated February 13,2002. The challenge thrown by the appellant that the order so passed by the hon''ble First Court is not tenable under the provisions of law inasmuch as the hon''ble First Court was pleased to admit the petition and directed to pay a sum of Rs. 4,72,732 being the principal together with interest at the rate of 12 per cent per annum from the date of the statutory notice till filing of the winding up petition and thereafter interest at the rate of 6 per cent per annum.

The said order dated February 13, 2002, has been challenged on the ground that the claim of the respondent could not have been adjudicated upon in a summary proceedings and further the claim was barred under the provisions of laws of limitation.

Mr. Sabyasachi Chowdhury, learned advocate appearing on behalf of the appellant drew our attention to the notice u/s 434 of the Companies Act, 1956, and contended that bills which were sought to be referred in the petition would show that the dates of the bills are almost all in the year 1994-95 excepting a sum of Rs. 14,000 which is dated March 2, 1996.

Mr. Chowdhury further drew our attention to a letter addressed by his client to the advocate-on-record of the respondent dated 11-4-2001, and submitted that bills so raised by the respondent on the appellant were not verified, settled and/ or passed for payment and particulars of the said bills were annexed to the said letter. He further pointed out that four bills aggregating to a sum of Rs. 79,368 were never received by his client which was also pointed out in the said letter.

He further drew our attention to a letter dated 7-10-1996, issued by the appellant and contended that the said letter cannot constitute as an acknowledgement of the amount due and payable by the appellant-company to the respondent. He also submitted that the ingredients of Sections 18 and 19 of the Limitation Act have not been satisfied and accordingly, it cannot be stated to be an acknowledgement.

On the contrary, it was stated before us by learned Counsel appearing on behalf of the respondent that at no point of time the appellant-company ever paid against the bills and in fact the company paid the amount, from time to time in a lump sum and the respondent duly gave credit therefor. The last of such payment was also made on 8-3-2001, and all these amounts as it would be evident from the letter dated 17-3-2001, were paid by the appellant-company between the years 1994 and 2001. The respondent duly gave credit in respect of the said amount and appropriated the said sum against the dues of the company.

He further drew our attention to the order passed by his Lordship on 13-2-2002, and contended that the admission on the part of the company which would be evident from the letter dated 14-1-2002, and further by learned Counsel appearing for the company before the hon''ble First Court where the learned advocate has specifically stated that at best the claim of the petitioner could be Rs. 3,49,000 and not Rs. 5,50,417. He further contended that the case of the settlement which was tried to be made out before his Lordship, was also negatived by his Lordship on the ground that there was no agreement between the parties for such settlement. It further appears that the case which is sought to be made out by the appellant that they did not receive four bills, the respondent duly furnished two bills and admitted the balance to have been paid by the appellant-company and received by the respondent. On this ground his Lordship admitted the petition for a sum of Rs. 4,72,732. Since there was no agreement between the parties, his Lordship fixed the interest at the rate of 12 per cent per annum from the date of issuance of the statutory notice.

In the facts and circumstances of this case he submitted that the respondent is entitled to get the amount as directed by his Lordship.

We have heard learned Counsel appearing for the parties and it appears to us that his Lordship correctly ascertained the facts and came to the conclusion since it appears that during the pendency of the application and after filing of the affidavit the company further paid a sum of Rs. 77,268 by a letter dated 14-1-2002. It is sure that if there were no dues of the appellant-company to the respondent, in that case the company could not have made such payment to the respondent, as the company did in the instant case. It further appears that the advocate of the company also admitted before his Lordship that at best the claim of the petitioner could be Rs. 3,49,000 and not Rs. 5,50,417. Therefore, such statement of the learned advocate shows that as on that date the said amount was due and payable by the company to the respondent. Therefore, in our opinion his Lordship rightly came to the conclusion in the facts and circumstances of this case and we do not find any reason to interfere with the order so passed by his Lordship on the given facts.

Therefore, we uphold the decision of his Lordship and dismiss this appeal filed by the appellant herein. We also do not find any reason to allow the cross-objection on the ground of interest so granted by his Lordship and the cross-objection is also dismissed since we felt that no grounds have been made out by the respondent in support of their cross-objection.

Accordingly, we dismiss the appeal as well as the cross-objection so filed by the respondent.

Tapan Kumar Dutt, J.

I agree.