TMI Blog2012 (10) TMI 1018X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpretation of the contract between the parties and unless that is adjudicated, not inclined to accept the case of the Petitioner to grant the prayers so made in the Petition, specifically when there is nothing on record to show that the Respondent/company, pursuance to this agreement/contract, has received the payment and they are deliberately avoiding to make the payment inspite of the undertaking and the bond so given. The Petitioner failed to satisfy that the Respondent company deliberately and intentionally neglecting to pay the agreed and due amount. As the amount so claimed, as the same itself cannot be the basis for granting relief so prayed at this stage of the proceeding. Let the amount be received by the company and be payab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2.2008.). Clause 5.2 reads as under: 5.2 Tooltech shall release to TAML all payments due to them (and provide all Reasonable documentation as proof, as required), within 3 to 5 working days on receipt of their (Tooltech's) payment from HAL on a back to back basis. However, Tooltech would effect the payment within 3 to 4 weeks from the date of receipt of certified bills from TAML. 6 Statutory notice dated 25.01.2012 issued under Section 434 of the Companies Act, 1956, referred in paragraph 4 as under : 4 Our Client informs us that, Your Company had executed an Undertaking dated July 29, 2009 wherein Your Company had undisputedly admitted liability to pay a sum of ₹ 81,94,426/( Rupees Eighty One Lakhs and Ninety Four T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther acknowledge and declare would be utilized to discharge the entire dues of Tata Advanced Materials Limited, as stated above and the said amounts received from Hindustan Aeronautics Limited would not be used or appropriated by us for any other purpose till the entire dues of Tata Advanced Materials Limited is cleared. 9 It is clear from the averment so made in the Petition as well as in the defence reply read with the document so referred that the Petitioner were fully aware of the nature of transaction and their entitlement of the amount for the goods/material, they supplied at the instance of the Respondent/company. 10 Clause 5.2, which is not in dispute makes the position very clear that the Respondent/company should release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that reconciliation itself means meeting of all the concerned, including HAL. There is nothing on record to show and/or suggest that such meeting took place. The defence is specifically raised that there is no such discussion and/or reconciliation took place as mentioned in the undertaking. 12 The learned counsel appearing for the Petitioner has strongly relied on an acknowledgement dated 8.3.2011 and submitted that this amount, if is due and payable and there is no denial to the same, on the basis of this itself, a winding up order should be passed. The demand notices itself referred the undertaking in question, in my view, it is difficult to read the documents and the clauses in isolation. The Petitioner's case has foundation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 5.2, submitted that the Respondent/company in fact is liable to make the payment within 3 to 4 weeks from the date of receipt of certified bills from the Petitioner. I am not inclined to accept this submission for the simple reason that the word However which is an adjacent, cannot be read without referring to the earlier sentence and/or sentences. The payment on the basis of concept of back to back basis, if accepted, then, it is only after that receipt of the payment by the Respondent/company from HAL, the Company is liable to make the payment, after receipt of the certified bills from the Petitioner or subject to the documentation as required. The interpretation of words subject to material cost and reconciliation itself is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 434 (1)(a) of the Companies Act, 1956. The Apex Court has elaborated that the amount due and payable should be clear and outstanding on the date of the demand. If any amount, though crystalized, liable to be paid subject to contingencies and/or certain conditions, that just cannot be stated to be the amount due and payable by the company. 17 Therefore, taking overall view of the matter and without expressing anything so far as the amount so claimed, as the same itself cannot be the basis for granting relief so prayed at this stage of the proceeding. Let the amount be received by the company and be payable after settling the account in accordance with the terms and conditions. All points are kept open. The Company P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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