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2018 (12) TMI 1717 - HC - Companies LawMaintainability of petition - breach in terms of AMC contract - It is the case of the respondent that the instant petitions are not maintainable as the respondent is not liable to discharge any debt and the sum claimed by way of compensation is not a debt as defined under law but, the same are damages and hence, the Company petitions are not maintainable - availability of alternative remedy of appeal - HELD THAT:- In the instant case as stated supra, it is not just a case of mere denial but there is also a counter claim. Hence, the contention that the sum offered by way of a goodwill gesture, has to be construed as an admitted debt is baseless and requires to be rejected. More so, in the light of the fact that the respondent has categorically stated in the correspondence that the offer stands withdrawn. The respondent has categorically asserted in the legal notice that as the petitioner failed to accept the proposal in full and final settlement, the proposal has been withdrawn. A claim for damages for breach of contract is, therefore, not a claim for a sum presently due and payable and the purchaser is not entitled, in exercise of the right conferred upon it under Clause 18, to recover the amount of such claim by appropriating other sums due to the contractor - it is not necessary for us to consider the other contention raised on behalf of the respondent, namely, that on a proper construction of Clause 18, the purchaser is entitled to exercise the right conferred under that clause only where the claim for payment of a sum of money is either admitted by the contractor, or in case of dispute, adjudicated upon by a court or other adjudicatory authority. Therefore the appellant had no right or authority under Clause. 18 to appropriate the amounts of other pending bills of the respondent in or towards satisfaction of its claim for damages against the respondent and the learned Judge was justified in issuing an interim Injunction restraining the appellant from doing so. As held by the Hon'ble Apex Court in UNION OF INDIA VERSUS RAMAN IRON FOUNDRY [1974 (3) TMI 105 - SUPREME COURT], where the claim is admittedly one for damages for the alleged breach of terms of the contract executed between the parties a petition for winding up does not lie. It has held that a claim for unliquidated damages does not give rise to a debt until the liability is adjudicated and damages assessed by a decree or order of a Court or other adjudicatory authority. In the instant case also, the claim is one for compensation for damages suffered on account of the alleged non-supply of vehicles which fact is disputed by the respondent and it is stated that the Trucks have been supplied and three Trucks continues to remain with the petitioner even after completion of the contract. The fact of the three Trucks being in the possession of the petitioner, is also admitted by the petitioner. Petition dismissed.
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