TMI Blog2004 (2) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the company petition No. 200 of 1988, the Corporation set up the plea that the company was indebted to it in the sum of Rs. 72,79,900.78 as on 13th March, 1987 alongwith the interest at the rate of 18% per annum. The Corporation averred in the said company petition that for the sugarcane supplied in the year 1985-86 (the rate of sugarcane having not been finalised by that time) an amount of Rs. 11,32,974.97 was due and payable by the company and for the sugarcane supplied in the year 1986-87 (first instalment), the principal amount of Rs. 59,57,905.90 was due and payable alongwith the interest of Rs. 4,673.75 upto 31-12-1986. The due amount also included an amount of Rs. 1,84,346.16 against the company for having falsely disputed the interest payable by them for the period from 1978-79 to 1982-83. The Corporation vide statutory notice dated 23rd June, 1987 called upon the company to pay to the Corporation the aforesaid amount together with interest thereon at the rate of 18% per annum, failing which the company was informed that it would be deemed that it was unable to pay its debts. The company responded to the said notice by its reply dated 15th July, 1987 and denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 11,32,974.97 but there was no valid defence to the claim of the Corporation for a sum of Rs. 59,57,905.90 and Rs. 22,35,251.28 for the price of the surgarcane supplied to the company in the years 1985-86 and 1986-87. The learned Company Judge, however, observed that the company has some plausible defence insofar as the counter-claim for the three years prior to filing of the company petition was concerned. 7. The learned Company Judge, thus, passed the following order : "9. In my opinion, the Company has no valid defence against the Petitioners as far as claim of Rs. 59,73,348.75 and Rs. 22,35,251.28 are concerned though they have some plausible defence as far their counter-claim for a period of three years prior to the filing of the Petitions. In my opinion, the Petitions deserve to be admitted. However, in order to give one more opportunity to the Company, I propose to pass a conditional order. If the Company pays to the Petitioners a sum of Rs. 73,74,371 with 9% p.a. interest from the date of the petition within a period of six months from today, the Petitions to stand dismissed. However, in case the Company fails to make the payment, the Petitions to stand admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that the claim of rent is unconnected with the claim of the Corporation against the Company for non-payment of the sugarcane supplied during the seasons 1985-86 and 1986-87. The legal position is well settled that a plea in the nature of equitable set off is not available when the cross demands do not arise out of the same transaction. The law recognises the right of equitable set off provided the claim arises out of the same transaction which is the foundation of plaintiff s claim and so long as it has not become time barred; the underlying principle being that it would be inequitable to drive the defendant to separate suit for the purpose. In the present case, the condition precedent from claiming equitable set off is not made out and cannot be said to be available as the cross demands do not arise out of the same transaction. The learned counsel for the company sought to urge that in so far as the proceedings for winding up of the company is concerned, if a plea of equitable set off is raised by the company, that would furnish the reasonable excuse for non-payment and the company cannot be said to have neglected to pay the debt due to the petitioner despite service of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that by their letter dated January 20, 1987, the Respondent Company categorically disputed the case of adjustment sought to be made out by the petitioners. It was specifically averred in the said letter that Mr. Maheshwari has never agreed to such adjustment. In my opinion, the dispute raised by the Petitioners in that behalf cannot be said to be frivolous or without any substance." 14. Now coming to the grievance of the Corporation that the learned Company Judge ought to have awarded interest at the rate of 18% per annum and not 9% per annum on the sum of Rs. 73,74,371 suffice it to say that winding up petition is not the recovery proceedings and therefore, the direction to the company to deposit the said amount with interest at the rate of 9% per annum cannot be faulted. 15. The learned Company Judge, though was of the view that company petitions deserved to be admitted, still he gave an opportunity to the company to pay a sum of Rs. 73,74,371 with 9% per annum interest from the date of petition within six months therefrom and upon compliance thereof, the petitions were to be dismissed. As already noticed above, under the interim orders in these appeals, the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. The trial court would consider and dispose of the matter in accordance with law on merits." (p. 100) 17. We are of the view that the Corporation having pursued winding up petitions and appeals before this court diligently and bona fide, the time taken in the said proceedings needs to be excluded. 18. Resultantly we dispose of the four appeals by the following order: The Maharashtra State Farming Corporation Ltd. is granted two months time to file the suit for recovery of the due amount against the Company viz. Belapur Sugar Allied Industries Ltd. The time taken by the Maharashtra State Farming Corporation Ltd. in prosecuting the winding up petition and the appeals before this court shall be excluded under section 14 of the Limitation Act, 1963. The company, if advised and legally available, may also pursue appropriate remedy for its claim against the Corporation. Obviously claim of the parties shall be considered in accordance with law. For a period of two months, the Government guarantee furnished by the Maharashtra State Farming Corporation Ltd. shall remain operative and thereafter, the said Government guarantee shall stand discharged unless ordered otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
