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TMI Blog2014 (4) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... not maintainable. 2. The controversy that needs to be addressed in the present case is whether the defense raised by the respondent is bonafide or a sham defence. And, whether the petition needs to be admitted in view of the defence raised by the respondent. 3. Briefly stated, the relevant facts are that the petitioner company and the respondent company entered into Commodity Trade Finance Agreement dated 27.01.2010 (hereinafter referred to as 'Agreement') whereby the parties agreed to source, supply and make payment for the import of almonds, pistachios, raisins etc. In pursuance of the said agreement, the petitioner supplied the agreed goods to the respondent, during the period between 01.07.2010 to 25.10.2011 and raised invoices for the same. 4. It is stated by the petitioner that the respondent failed to make the payment towards the invoices and as on 31.03.2011, a sum of Rs.8,45,89,296/- was outstanding and payable by the respondent to the petitioner. It is submitted that the respondent issued seven cheques of Rs.1,00,00,000/- each drawn on Axis Bank Ltd., bearing Cheque Nos.104668, 104669, 104670, 104671, 104672, 104673 and 104674 dated 31.03.2011 towards part payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .8,45,89,296/- was admitted by the respondent to be due and payable to the petitioner. 8. In response to the winding up petition, the respondent has filed its reply disputing that the amounts claimed by the petitioner were due and payable by the respondent. It is stated by the respondent that even after 31.03.2011, the respondent continued accepting goods supplied by the petitioner and also made payment towards the same. It is submitted that from period between 01.04.2011 to 25.10.2011, the respondent purchased and took delivery of goods for consideration aggregating Rs.2,30,95,275.59 and also made a payment of Rs.4,01,51,900.26 to the petitioner. The respondent has stated that the balance amount outstanding is Rs.6,56,51,469.97. The respondent has also filed a statement of accounts indicating the above. It is contended that even after receiving further payment, the petitioner did not return the two cheques (towards the amounts already paid), issued as a security and to this effect, the respondent also sent a mail dated 23.11.2011 to the petitioner. The petitioner also accepts that a principal sum of Rs.6,67,75,450/- was outstanding as on date since the petitioner had received cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In support of this contention, the learned counsel for the respondent has relied upon the decisions of this Court in RPG Cables Ltd. v. Logic Eastern India Pvt. Ltd.: 2011 (176) DLT 641 and Tata Capital Financial Services Ltd. v. Clutch Auto Ltd.: 2014 (2) AD (Delhi) 163. 12. It is contended by the respondent that the respondent had been tricked into providing the balance confirmation on account of a representation made by one of the employee of the petitioner company. 13. It is further contended by the counsel for the respondent that, on account of the facts as stated above, a dispute has arisen and as per the calculation of the respondent (after giving and adjusting the currency premium charged, the worth of the balance stock sold in open market, further payments made, interest etc.), the amount left to be paid by the respondent to the petitioner would not be significant and the present petition is, thus, not maintainable. 14. I have heard the learned counsel for the parties. 15. The short question that requires to be determined in the present proceedings is whether the defence raised by the respondent is a bonafide defence. It is well settled that in cases where there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent at the material time. The letter dated 14.04.2011 clearly indicates that the respondent had agreed that the cheques aggregating to Rs.7 crores be deposited by the petitioner by 24.04.2011 against part discharge of the outstanding amount. It is not disputed that the said letter has been signed by an authorised representative of the respondent company. The petitioner states that the said signatory was a Director of the respondent company at the material time. This is not accepted by the respondent and it is pointed out that the signatory is the husband or one of the Directors'. Be that is it may, it is not disputed by the respondent that he was authorised to sign on behalf of the respondent company. It is also apparent that authorised signatory was closely connected with the business and could not have been expected to sign acknowledgements which were not correct. The contention that the respondent was induced to sign the balance confirmation is ex facie not credible. 17. Further, in addition to the letter dated 14.04.2011, the balances as appearing in the books of accounts had also been confirmed. Admittedly, at this stage, there were no disputes between the parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed losses, which are liable to be compensated by the petitioner is also not a bonafide dispute. The respondent had made no protest at the material time i.e. the Diwali season of 2010. This indicates that there was no dispute between the parties on this account. The disputes sought to raised in November, 2011 were after the cheques issued by the respondent had been dishonoured and the petitioner had taken steps for initiation of proceedings under the Negotiable Instrument Act, 1881. In the event that the respondent was aggrieved by any delay in supply of goods, the contemporaneous correspondence in 2010 and even in early part of 2011 would indicate the same. In absence of any dispute at the material time, the contention that the debt claimed by the petitioner is disputed cannot be accepted. 21. The contention of the respondent that certain cheques had been issued to the petitioner as security is also not sustainable. The letters dated 14.04.2011 and 05.05.2011 clearly indicate that the cheques issued by the respondent were in discharge of "part of outstanding amount". The said letters are not disputed and the respondent cannot be permitted to canvass a contention contrary to the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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