TMI Blog2003 (2) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-company made payments by means of cheques and the particulars are also given. After giving credit to the payments already made, the respondent is still liable to pay Rs. 18,929.27. The respondent also agreed to pay interest at 24 per cent per annum. The petitioner orally as well as in writing called upon the respondent to make the payment. The petitioner also issued a statutory notice dated 23-11-1996, and it was received by the respondent on 6-12-1996. The respondent sent a reply dated 20-12-1996, containing false allegations. Right from the date of delivery of goods till the receipt of the letter dated 29-8-1996, there was no whisper from the respondent about the defects in the goods supplied. The respondent had completed 90 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the two defective bearings is Rs. 29,890 and after adjusting the amount paid by the respondent towards various purchases, it is only the petitioner who has to pay a sum of Rs. 10,960.23. The respondent also sent a suitable reply to the notice sent by the petitioner. It is because of the defective supply and since the petitioner did not bother to replace the defective material, the respondent retained the balance amount payable in order to make the petitioner replace the machinery. The petition is liable to be dismissed. 4. Heard learned counsel for the parties. 5. The points that arise for consideration are (1)Whether the petitioner has made out a case to admit the company petition ? (2)Whether the objections raised by the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the place and pointed out that there was manufacturing defect of bearing and assured to replace the same. It was duly communicated to the petitioner even before the statutory notice and since they were not replaced, the respondent had retained the balance amount. In short, it is a bona fide dispute raised by the respondent and the petitioner has not made out any prima facie case to admit the company petition. 8. Learned counsel for the petitioner contended that the goods have been received by the respondent-company and they have also utilised the same. Under section 42 of the Sale of Goods Act, a presumption can be drawn that buyer is deemed to have accepted the goods. In support of his contention, he relied upon the Bench decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Paper Mills. This cannot be relied upon by the petitioner to show that the respondent is not in a position to pay the amount. On the other hand, the typed set of documents filed by the respondent would clearly and clinchingly establish that there is no prima facie case for the petitioner. It is seen from the letter dated 30-8-1996, that two numbers of bearings supplied by the petitioner have been broken while running in the machine. At present, one number has been dismantled from the machine of the customer and the same has been kept at their work site, which can be inspected by them at any point of time. One more number is running in the machine with rattling noise which may give way unexpectedly. Even though the machine is running ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
