TMI Blog1993 (10) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... Jyothi and Jeewan Dhara. The agreement was arrived at between the parties, the terms of which are contained in the petitioner's letter dated January 15, 1991. Pursuance to that agreement, the petitioner was to print the tickets of the first four lotteries from the third draw onwards and those of the last three lotteries from the fourth draw onwards. These tickets were to be despatched by the petitioner to the respondent. The petitioner raised bills with regard to the lottery tickets printed by the petitioner for the respondent. Some payments were made by the respondent but an amount of Rs. 1,78,000 was still due and outstanding against the respondent. The respondent raised objections regarding the delivery of tickets schedule followed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person without jurisdiction. The tickets were received from 1 to 5 days before the date of draw. Some of the tickets were received from 6 to 10 days before the date of draw, others were received from 11 to 13 days before the date of draw and then 14 to 21 days before the date of draw. This delay in delivery led to the loss in the business of the respondent. In rejoinder the petitioner took the plea that time was not the essence of the contract nor was it agreed that in case the tickets were not supplied within 21 days, the respondent would claim damages or reserved the right to reject the supply of the lottery tickets. In fact after discussion a settlement was arrived at whereby the respondent admitted the liability to pay to the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner a sum of Rs. 1,02,721.03. The question that arises for consideration is : in view of this letter thereby settling the dispute between the parties does it lie now for the respondent to raise any dispute on the same account. Admittedly, the complaint of the respondent that the lottery tickets were not supplied in time or as per the schedule or the delivery period, were of the year 1991, whereas this settlement after discussion was arrived at in January, 1992. Therefore, this letter assumes importance for the determination of this petition. Mr. Jayant Nath, appearing for the respondent, contended that this letter can at best be treated as an acknowledgment of debt. But mere acknowledgment would not fasten any liability on the respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exists and secondly the company is unable to pay it. In this case the respondent by its own admission made in the letter dated January 29, 1992, has established the debt due and payable to the tune of Rs. 1,02,721.03 and the same has not been paid by the respondent in spite of statutory notice. When once the company admits that it owes an amount, it is for the company to establish that the liability has been discharged. In this regard reference can be had to the decision of the Kerala High Court in the case of M.V. Paulose v. City Hospital P. Ltd. [1992] 73 Comp Cas 362 . The contention of counsel for the respondent that the letter dated January 29, 1992, was procured has not been prima facie proved on record nor any letter of resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alk of bona fide defence. Therefore, the ratio of the Bombay High Court decision has no applicability to the facts of this case. Counsel for the respondent then placed reliance on the decision of the Calcutta High Court in the case of J . . Roy Chowdhury ( Traders ) Pvt. Ltd. v. Jainti Enterprises [1987] 61 Comp Cas 504. In that case on the facts disclosed the court came to the conclusion that the dispute was bona fide and hence the winding up order was not passed. But in the case in hand in view of the acknowledgment of debt, vide letter dated January 29, 1992, it cannot be said that any substantial or bona fide dispute has been raised by the respondent-company by merely denying its liability now. Mr. Jayant Nath's contention that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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