TMI Blog1999 (8) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows : According to the applicant-appellant a sum of Rs. 1,33,750 together with the interest at the rate of 21 per cent. per annum from August 19, 1993, till payment was owing and due to the respondent-company. The appellant herein through its advocate served a statutory notice upon the company on March 12, 1996, stating : "In the premises our client is entitled to realise from you the said sum of Rs. 1,33,750 being the price of 25 M.T. of muruate of potash supplied to you in terms of our clients Bill No. A-2, dated August 19, 1993. Our client is also entitled to claim and claims interest at the rate of 21 per cent. per annum from August 19, 1993, until payment. We have been further instructed by our said client to demand of you w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect in documentation at your end the excess supply could not be detected at the time the supply was made. However, after the confusion was finally clarified on or about August 19, 1992, your client was advised by my client to raise bills for this excess supplies of 25 M.T. MOP so as to enable my client to make the payment as the supplies were already in the consumption process in the meantime. It appeared that with effect from August 25, 1992, the restrictions on the sale price of MOP was removed and the price was revised at Rs. 6,600 per M.T. Taking advantage of this upward revision of price your client demanded the price of the excess supply of 25 M.T. at this enhanced rate of Rs. 6,600 per M.T. and declined to accept the contractual r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your client may be advised to note." In such situation the aforementioned application was filed. The learned trial judge having regard to the aforementioned stand taken by the respondent herein, inter alia , held that the question of payment of any amount at the enhanced rate for the supply of goods does not arise. The question as to whether the appellant herein was entitled to an enhanced amount than the alleged contract amount would be a disputed question of fact. But having regard to the conduct of the respondent in accepting its liability towards the excess supplies which according to the respondent at the contractual rate would amount to acknowledgement, at the least, to the extent of Rs. 43,987.50 and, thus, we do not find any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have admitted the petition for the aforementioned amount. After all justice must be done to the parties and if even despite admission, the respondent fails and/or neglects to pay the amount, an appropriate action can be taken by the court within the framework of law. For the reasons aforementioned this appeal is allowed in part and the order under appeal is modified as under : Application for winding up is admitted for the said sum of Rs. 43,987.50. The respondent is directed to pay the said amount to the appellant herein within one month from date and upon the respondent making the said payment the company petition shall remain stayed sine die. However, if the respondent defaults in making the said payment within the stipulated time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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