9911796707
TMI Blog2007 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-2. 3. With reference to the aforesaid extracts of the books of account, it is submitted that during the period between 1994 to 1999 the petitioner supplied leaf springs to the company against which the company made on account payment subject to final settlement of accounts and pending such final settlement, debts amounting to Rs. 33.03 and Rs. 14.94 lakhs accrued on 10-11-1999 and for failure of the company to clear such determined debts, the instant winding up petition has been filed. In this connection, it was further pointed out, with reference to memorandum of understanding signed between the petitioner and the company dated 24-4-1999 as contained in Annexure-3 to flag '2', which became effective from 1-4-1999 as also another memorandum of understanding dated 4-11-1999, as contained in Annexure-7/III to flag '2', that all orders, invoices and payments to the petitioner were to be routed through the company. Payment for such supplies to the different dealers if not made within 60 days from the date of supply or for supplies made in April by June and for supplies made in May by July and so on then 2 per cent interest per month over such delayed payments was payable by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing was served with notice dated 29-7-2000/16-8-2000 calling upon the company and its representative to clear the aforesaid dues, failing which the proceedings under section 433(e) shall be initiated for the winding up of the company. In response whereto, reply dated 9-9-2000, as contained in Annexure-A to the supplementary counter-affidavit was served stating, inter alia, that the relationship between the petitioner and the company was that of distributor and marketer of Jai brand spring leaves and as a distributor the company was entrusted with the responsibility of collecting and forwarding the orders as well as payments received from the customers or parties to the Patna office of the petitioner and in absence of the staff at the Patna office to send the payment/drafts to Gwalior office of the petitioner. It was further asserted in the reply that the supplies were never directly made to the company and the responsibility of the company was only to collect the payments/drafts from the dealers to whom the supplies were directly made and the company was entitled to receive discount for the services rendered in collecting dues from the dealers in the market and a sum of Rs. 28.1658 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and in the case of S. Kantilal & Co. (P.) Ltd. v. Rajaram Bandekar (Sirigao) Mines (P.) Ltd. [1993] 76 Comp. Cas. 800 (Bom.). 7. Learned counsel for the Company/opposite party, with reference to the memorandum of understanding dated 24-4-1999. Annexure 3 to flag '2', submitted that the accounts maintained by the parties were never reconciled as was agreed to under the aforesaid memorandum of understanding but pending reconciliation of accounts, supplies were initially resumed, which enabled the company to collect the draft of Rs. 20 lakhs towards the earlier outstanding, which was posted to the company but as supplies were not made through the company after 7-9-1999, the company could not collect the remaining dues from the market after 7-9-1999, which fact is evident from the books of account itself and in this connection reliance was placed over entries made in the books of account at page 102 of Annexure-9 to flag '13'. To ensure that the supplies are resumed/continued so as to enable the company to collect the remaining outstanding from the market, the company even forwarded 5 cheques of Rs. 5 lakhs each by way of guarantee to the petitioner under letter dated 4-11-1999 but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is that of the Agent and Principal and it is well known that for failure to collect the amount due to the Principal, Agent cannot be sued as the amount is due from the dealers and not from the petitioner/agent, who is only liable for the interest on delayed payment by the dealers. In the background of the aforesaid facts, it is submitted that the dues of the dealers is not the dues of the company for which company can be wound up. It is further submitted that even if it is admitted that the dues are of the company, the same is not a determined dues as for failure of the petitioner to continue the supplies after 7-9-1999, the earlier outstanding could not be collected and in the circumstances, it is difficult for this Court to hold that it is on account of failure of the company the outstanding dues could not be collected as according to the company, it was the failure of the petitioner, which led to non-collection of the outstanding dues. So long petitioner was co-operating, the outstanding of Rs. 20 lakhs was collected but the remaining dues could not be collected as supplies were not continued after 7-9-1999. In support of the aforesaid contention, learned counsel for the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
