TMI Blog2013 (8) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be entertained at all - without materials/particulars it was difficult to come to such a conclusion with regard to fraud. - A.P.O. No. 107 of 2009 A.C.O. No. 26 of 2009 C.P. No. 394 of 2000 - - - Dated:- 4-4-2012 - PINAKI CHANDRA GHOSE AND DR. MRINAL KANTI CHAUDHURI JJ. For the appellant: Mr. S.N. Mukherjee, Sr. Adv. Mr. Ratnanko Banerjee, Adv. For the respondent: Mr. Debangshu Basak, Adv. Mr. Kumar Gupta, Adv. PINAKI CHANDRA GHOSE, J.: This appeal is directed against a Judgment and/or order dated 26th March, 2009 whereby the Hon ble Single Judge was pleased to hold as follows : Therefore, I find that the company is really unable to pay the dues as the cheques were dishonoured. There has been no payment admittedly thereof and as such criminal proceedings has been initiated. I hold that company is unable to pay the debts of the petitioning creditor to the extent of Rs.43,09,848 being the amount covered by the said cheques. It is not possible for this court to adjudge payability of balance claim in the petition on account of interest without accurate accounting which is complex is nature. However, if the company pays this amount by eighteen equal monthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the respondent. It is the case of the appellant company is that cheques were issued not to liquidate the dues of the respondent but it has been claimed that the said cheques were issued only for future supplies to be made by the respondent to the appellant company. It is the case of the appellant that the advance cheques for a sum of Rs. 43 Lakhs all were handed over to the representative of the respondent after due receipts and vouchers were issued in respect of such cheques and all the vouchers were singed by an employee of respondent namely S.K. Jha and were duly stamped. The further case of the appellant is that the purchase ledger of the appellant would show that the cheques were issued for future supplies. It is further stated on behalf of the appellant company that the adjustment of the accounts were duly brought to the notice of the respondent which was denied by the respondent and the documents tried to be relied upon by the appellant company. It was contended on behalf of the respondent that all such documents disclosed by the appellant are manufactured and fictitious. It is also alleged that the seal of the company was also fabricated and S.K. Jha was never au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1994) 1 SCC 1. It is submitted on behalf of the appellant that all documents are forged, fabricated and manufactured in that case respondent cannot come before the Court in a winding up petition and the Court cannot decide the question summarily without adducing any evidence. It is stated that even if a suit is maintainable by respondent against the company, the company is entitled to claim an equitable set off. It is submitted that although the petition was filed in the year 2000 but the matter was pending, and, therefore, filing of any suit by the company for recovery of its claim would not arise at this stage as the company has claimed all its dues as against the dues of the respondent. The learned Counsel further submitted that it would be inequitable to admit a claim of the respondent, disallowing a claim of the company. Reliance was placed in the case of Bhoja Alias Bhoja Ram Gupta Vs. Rameshwar Agarwala Ors. reported in1993 (2) SCC 443). It is submitted that an equitable set off is not restricted by the laws of limitation. In support of his submission he relied on the decision of Ramdhari Singh Vs. Permanund Singh reported in 19 CWN 1183 Page 1186. In these circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no dispute. The story of reverse supply was set up for the first time in Court and should not be entertained as a bona fide dispute to resist the claim of the respondent. In these circumstances, the respondent submitted that the story of supply of the goods to the respondents was made for the first time in the affidavit in opposition. He further submits that after the cheques were dishonoured, the appellant wrote the letter dated 7th June, 2000 alleging that all bills pertaining to period 1996-1998, were seized by the Sales Tax authorities and stated that:- Since we do not have record of your bills we shall be grateful if your would provide us duplicate/Xerox copes of the bill pertaining the aforesaid cheques transactions. Since we have agreed mutually that whatever has happened is a thing of the past and amicably settle the issue we shall be happy to have copies of bills requested by us above. He drew our attention to the letter dated 7th June, 2000 and, according to him, the following facts would emerge from the said letter:- i. The cheques were not advance cheques but were issued against some bills, ii. There is no whisper about any supply being made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Judge duly considered the case of the appellant and correctly held that there is no acceptable explanation given by the appellant as to why the cheques were dishonoured. The plea of setting of the claim of the appellant also cannot be accepted since in the affidavit-in-opposition it has been specifically stated that there has been no agreement as alleged. It appears from the fact that the said question has correctly decided by the Hon ble Single judge. On the question of suppression or fraud having regard to the case and counter-case of the parties also cannot be accepted. His Lordship has minutely checked the facts as placed before the Court with the materials and came to the conclusion that there has been no consideration for the cheques being issued. His Lordship further held that the factum of issuance of cheques in favour of particular person pre-supposes consideration unless it is shown that cheques were issued under threat, coercion or fraud. The appellant has failed to make out such case. It further appears that in the winding up petition it would be evident from the Annexures E and D that the outstanding dues with particulars have been specifically indicated and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Udyog reported in 1994(1) CHN 409; Amalgamated Commercial Traders (P) Ltd. Vs. A.C.K. Krishnaswami reported in 1965 Company Cases (35) 456; Madhusudan Gordhandas Company Vs. Madhu Woolen Industries, reported in AIR 1971 SC 2600 and Mediqup Systems Pvt. Ltd. Vs. Proxima Meidcal System G.M.B.H. reported in AIR 2005 SC 4175, it appears to us that the said decision cannot be a help to the appellant in the facts and circumstances of this case since no bona fide defence has been put forwarded by the appellant. We have also noticed in SRC Steel (P) Ltd. (Supra) where the Court held that in the case of a bona fide disputed debt the winding up petition itself would not be admitted. But in our considered opinion we have not been able to find out that a bona fide dispute has been raised in the facts and circumstances of this case. We have noticed in Bhoja Alias Bhoja Ram Gupta s case (Supra) where the Court held that a tenant cannot help himself from the consequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent paid consequent upon mutual enhancement of rent, even if illegal unless there is an agreement bet ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
