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Pramerica Asset Managers Pvt. Ltd. and Ors. Versus Deccan Chronicle Holdings Ltd.

2016 (3) TMI 507 - BOMBAY HIGH COURT

Repayment of maturity proceeds of the commercial papers as well as on dishonoured cheques - decree in the sum of ₹ 25 crores along with interest at the rate of 18% per annum - claims arise from written contracts contained in what are known as “Series 1 Commercial Papers” and also in a letter dated 10 July 2012 issued by the Defendant in favour of Plaintiff No.1 - Held that:- n appeal under Section 25 is a continuation of the inquiry under Section 16. It will be preposterous to suggest that .....

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dings, contracts, etc. in respect of the company under reference. Section 22 clearly indicates that at the trial stage, namely, at the level of BIFR, an inquiry ought to have commenced before Section 22 comes into play. That is the earliest stage in the reference at which Section 22 is triggered. As I have indicated above, that is not the stage at which we are in the present case. Be it at the level of BIFR or at the level of AAIFR, we are still effectively at the preregistration stage. There is .....

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garding trading in commercial papers and the process of redemption upon maturity of the commercial papers. These guidelines lay down a procedure for secondary market transactions in a commercial paper. Nothing could be pointed out by learned Counsel for the Defendant to show that there is any breach in the present case of either the Master Circular issued by RBI or the operational guidelines issued by FIMMDA so as to question either the transfer of the commercial paper from the original holder, .....

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ct commercial papers. The Defendant irrevocably confirmed and bound itself to repay the amounts of both commercial papers to Plaintiff No.1 and also interest on delayed payment at the rate of 18% per annum on an annual compounding basis. In these facts, there is no defence on merits as far as the suit claims are concerned.

The rationale of this is that the letter contains a promise to pay; and every promise is a proposal by which the proposer signifies his willingness to do or abstain .....

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ce of such acceptance). The debt confirmation letter is clearly addressed by the Defendant to Plaintiff No.1 at its office in Worli, Mumbai and is communicated at that place. A part of the cause of action can certainly be said to have arisen at Mumbai. Upon leave being granted under clause 12 of the Letters Patent, this court clearly has jurisdiction to entertain and try the present suits.

The following order is passed :

(i) The Defendant is granted leave to defend the suit .....

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ster to invest the amounts deposited by the Defendant, if any, in fixed deposit/s of Nationalised Bank initially for a period of one year, thereafter to be renewed from time to time, so as to abide by the final orders that may be passed in the suits;

(v) The Summonses for Judgment are disposed of accordingly. - SUMMONS FOR JUDGMENT NO. 32, 71 OF 2013, SUMMARY SUIT NO. 280, 804 OF 2013 - Dated:- 5-2-2016 - S.C. GUPTE, J For The Plaintiffs : Mr.Rohan Rajadhyaksha with Shahen Pradhan, Ms .....

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e Defendant in favour of Plaintiff No.1 confirming and binding itself to repay the maturity proceeds of the commercial papers as well as on dishonoured cheques. 2 During the pendency of the summary suits, the Defendant applied for a reference under the Sick Industrial Companies (Special Provisions) Act, 1985 ( SICA ). By an order dated 24 April 2014, the Board for Industrial and Financial Reconstruction ( BIFR ) declined to register the Defendant s reference. This order has been challenged by th .....

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alleged by the Defendant, needs to be considered. The relevant facts in this behalf are noted below : 3.1 On 26 August 2013, the Defendant filed a reference before BIFR based on provisional accounts of the company for the Financial Year 2012-13, seeking registration as a sick industrial company under Section 15(1) of SICA. 3.1.2 The Registrar, in accordance with the provisions of Regulation 19 of the Board for Industrial and Financial Reconstruction Regulations, 1987 ( BIFR Regulations ), scrut .....

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aggrieved by the Registrar s order, the Defendant filed an appeal before the Secretary - BIFR as per Regulation 19(8)(1) of the BIFR Regulations. 3.1.5 By an order dated 21 November 2013, the appeal was dismissed by the Secretary - BIFR declining to interfere with the Registrar s order. 3.1.6 On 29 November 2013, the Defendant preferred a second appeal before the Chairman - BIFR in accordance with Regulation 19(8)(2) of the BIFR Regulations. By his order dated 13 January 2014, the Chairman - BI .....

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gistrar as well as the secretary and chairman, referred to above, and directed BIFR to consider the issue of validity of registration in the first instance. 3.1.9 The matter of registration of reference was thereafter heard by BIFR. By its order dated 24 April 2014, BIFR held that the registration of the Defendant s reference dated 17 September 2014 before BIFR was not valid. 3.1.10 The Defendant thereupon filed an appeal before AAIFR, being Appeal No.114/14, challenging the BIFR order dated 24 .....

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ial company, which entails stay of suits within the meaning of Section 22 of SICA, let us note the relevant provisions of SICA which have a bearing on the question. (a) SICA defines the terms, Company , Industrial company , Industrial undertaking , Scheduled industry and Sick industrial company as follows : S.3(1)(d) Company means a company as defined in section 3 of the Companies Act, 1956 (1 of 1956). S.3(1)(e) Industrial company means a company which owns one or more industrial undertakings. .....

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he Fist Schedule to the Industries (Development and Regulation Act, 1951 (65 of 1951); S.3(1)(o) Sick industrial company means an industrial company (being a company registered for not less than five years) which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth. Explanation.- For the removal of doubts, it is hereby declared that an industrial company existing immediately before the commencement of the Sick Industrial Companies (Special Provisions .....

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irectors of the company, shall, within sixty days from the date of finalisation of the duly audited accounts of the company for the financial year as at the end of which the company has become a sick industrial company, make a reference to the Board for determination of the measures which shall be adopted with respect to the company: Provided that if the Board of Directors has sufficient reasons even before such finalisation to form the opinion that the company had become a sick industrial compa .....

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isation company or reconstruction company under sub-section (1) of section 5 of that Act: Provided also that on or after the commencement of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, where a reference is pending before the Board for Industrial and Financial Reconstruction, such reference shall abate if the secured creditors, representing not less than three-fourth in value of the amount outstanding against financial assistance disbu .....

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make a reference in respect of such company to the Board for determination of the measures which may be adopted with respect to such company: Provided that a reference shall not be made under this sub- section in respect of any industrial company by,- (a) the Government of any State unless all or any of the industrial undertakings belonging to such company are situated in such State; (b) a public financial institution or a State level institution or a scheduled bank unless it has, by reason of .....

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upon receipt of a reference with respect to such company under section 15; or (b) upon information received with respect to such company or upon its own knowledge as to the financial condition of the company. (2) The Board may, if it deems necessary or expedient so to do for the expeditious disposal of an inquiry under sub-section (1), require by order any operating agency to enquire into and make a report with respect to such matters as may be specified in the order. (3) The Board or, as the ca .....

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to any industrial company under sub-section (1) or, as the case may be, under sub-section (2), it may appoint one or more persons to be a special director or special directors of the company for safeguarding the financial and other interests of the company or in the public interest. (d) The powers of the board, after making an inquiry under Section 16, are provided for in Section 17 of SICA. The relevant provisions are noted below : 17. Powers of Board to make suitable order on the completion of .....

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s net worth exceed the accumulated losses within a reasonable time, the Board, shall, by order in writing and subject to such restrictions or conditions as may be specified in the order, give such company as it may deem fit to make its net worth exceed the accumulated losses. (3) If the Board decides under sub-section (1) that it is not practicable for a sick industrial company to make its net worth exceed the accumulated losses within a reasonable time and that it is necessary or expedient in t .....

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pany concerned, or if the company fails to revive in pursuance of the said order, review such order on a reference in that behalf from any agency referred to in sub-section (2) of section 15 or on its own motion and pass a fresh order in respect of such company under subsection (3); (b) if the operating agency specified in an order made under subsection (3) makes a submission in that behalf, review such order and modify the order in such manner as it may deem appropriate. (e) Further provisions .....

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not likely to become viable in future and that it is just and equitable that the company should be wound up, it may record and forward its opinion to the concerned High Court (Section 20), whereupon the High Court, shall on the basis of the opinion of BIFR, orders winding up of the sick industrial company in accordance with the provisions of the Companies Act, 1956. (f) Section 22 of SICA provides for suspension of legal proceedings, contracts, etc., the relevant provisions of which are as foll .....

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f the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial comp .....

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ertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (2) On receipt of an appeal under sub-section (1), the Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against or remand the matter .....

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he first of the abovementioned contingencies, namely, pendency of an inquiry under Section 16. SICA is an enactment, which makes provisions for preventive, ameliorative, remedial and other measures for sick and potentially sick companies owning industrial undertakings and expeditious enforcement of such measures. These provisions are invoked by filing a reference before BIFR under Section 15. Any reference filed before BIFR goes through four stages before the industrial company under reference i .....

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ection 15(1) of SICA), or the Central Government or Reserve Bank or a State Government or a public financial institution or a state level institution or a scheduled bank (Section 15(2) of SICA). Regulation 19 of BIFR Regulations deals with the procedural aspects of registration of a reference. A reference under Section 15(1) is required to be made in Form A prescribed under the Regulations, whilst a reference under Section 15(2) is made in Form 'B'. (There are other similar forms for Gov .....

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be, by the Registrar. (In actual practice, the decision to register or decline registration is taken by the Registrar.) An appeal against the order of the Registrar declining to register a reference lies before the Secretary, whilst an appeal against the Secretary's order declining to register a reference is made before the Chairman (Regulations 19(8)(1) and (2) of the Regulations.) A reference declined to be registered is deemed not to have been made (Regulation 19(7) of the Regulations). .....

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utiny. It is from that time that actions against the Company's assets and suits for recovery of money against the company are stayed under Section 22. In other words, between the date of physical filing of a reference under Sections 15(1) or 15(2) and its registration, there is no question of pendency of an inquiry under Section 16(1). The proceedings before the Registrar, Secretary or Chairman of the Board, as the case may be, are all pre-registration stages. There is no application of Sect .....

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carried on in one or more factories by the company). Secondly, it must qualify as a sick industrial company, namely, an industrial company, being a company registered for not less than five years, which has at the end of any financial year accumulated losses equal to or exceeding its entire net worth, as defined in Section 3(o) of SICA. The meanings of words and expressions used but not defined in SICA are to be gathered from the Companies Act, 1956 and in default of that, from the Industries ( .....

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y of the preceding twelve months and provided further that in no part of such premises any manufacturing process is being carried on with the aid of power.' These provisions make it clear that the pre-registration scrutiny would include the following matters : (a) Whether registration is sought in respect of a 'company' as defined in Section 3 of the Companies act, 1956? (b) Whether such 'Company' owns one or more undertakings pertaining to any industry specified for the time .....

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ence is made in a correct form? Whether all particulars required are submitted? If these matters are found by the registering authority in the affirmative, a reference is registered and the matter then rests with the Board for making an inquiry for determining whether any industrial company has become a sick industrial company , under Section16 of SICA. At this stage, as held by the Supreme Court in the case of Real Value Appliances (supra), Section 22 kicks in and there is a stay of proceedings .....

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der Section 22 of SICA is available upon such registration. Many a time unscrupulous elements take undue advantage of the provisions of Section 22 by filing frivolous references or successive references on practically the same set of facts after rejection of an earlier reference or references. Mechanically registering such references on a ministerial scrutiny by the officials of the Board is not conducive to advancement of justice. Delhi High Court, in the matter of Alcatel-Lucent India Ltd. Vs. .....

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misused. It is a matter of concern that over a period there has been rampant abuse of this provision. 22. The experience of the working of the SICA has been far from satisfactory. This enactment was formulated as an alternative to the process of recovery through civil courts, which was a very time consuming process and the winding up through the companies Act where hardly any recoveries could be made by the financial sector, while at the same time, ensuring that social and economic fallout of t .....

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FR, guidelines can be issued to ensure that fresh references in subsequent years should not be mechanically entertained. 24. Learned counsel for the respondent may be right in contending that while registering the references, the Registrar cannot act as quasi judicial authority which is the function of the Board. However, in order to ensure that such situation does not recur, at least in those cases where the reference is rejected earlier, matter can be referred to directly to the BIFR and BIFR .....

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nces were rejected previously, the BIFR can pass appropriate directions refusing to extend the benefit of Section 22 of the SICA. 25. We, thus, dispose of this writ petition with the direction that BIFR should formulate necessary Practice Directions in the light of our aforesaid discussion within three months and issue the same for compliance . Later, another Division Bench of Delhi High Court in Zenith Infotech Ltd. Vs. Union of India W.P.(C) 3437/2014 was confronted with the question, whether .....

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sub-section (1). Under sub-section (2) to Section 15, Central Government or the Reserve Bank or a State Government or public financial institution etc. can make a reference. Section 16 relates to inquiry by the Board. It stipulates that the Board may make such inquiry, as it deems fit, for determining "whether any industrial company has become a sick industrial company" (a) upon receipt of reference in respect of such company under Section 15; or (b) upon information received in respe .....

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meaning of Section 3(o) of the Act. These issues can be debateable and contentious. We perceive and believe that when such issues arise for consideration, the power of adjudication and decision on these vital and substantive issues must vest with the Board. The Act recognises the Board as the adjudicating authority for all disputes. The office of the Registrar, Secretary etc. are not treated and regarded as the adjudicating authorities under the Act. Any other interpretation will result in narro .....

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and enquiry should be held. In B.Y.Narasimha Prasad Vs. M. Veerappa and Anr., (2008) 9 SCC 372, the Supreme Court has held, the question of maintainability of proceedings could be a jurisdictional issue and the Court is legally bound to address and answer the same; whether or not any objection is raised by the other side. The Division Bench then noted the judgment of the earlier Division Bench in Alcatel Lucent India Ltd. (supra) prefacing the quotation in Alcatel with the following words: 21. .....

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t held as follows : 22. Keeping in view the aforesaid legal position, we are of the view that when the Registrar or the Secretary is of the opinion or view that the company making the reference is not a sick industrial company and therefore reference should not be registered, they need not register the reference but refer the matter to the Board. The Board, thereafter, would decide whether the reference should be registered. This would ensure that the Registrar or the Secretary do not become adj .....

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ate decision. Similarly, if the reference is erroneously registered, contrary to the provisions of the Act, an objection can certainly be raised, whether jurisdictional prerequisites are satisfied, which can be decided by the Board notwithstanding earlier registration by the Registrar, Secretary or the Chairman of BIFR. Therefore, as in this case, they went beyond the scope of scrutiny, we direct the matter be placed before the duly constituted Board, to decide, whether the petitioner is an indu .....

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der dated April 03, 2014 of Chairman, BIFR are set aside. This then appears to be the trend of the judgments of Delhi High Court. When contentious issues are raised at the stage of scrutiny of the reference before its registration, the matter is sent to BIFR for a decision as to whether the reference should at all be registered. It is important, however, to note that once the Board takes its decision on these issues in favour of the company under reference, what follows is the registration of th .....

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finition given in Section 3(1)(n) of SICA, which is a precondition for registration as a sick industrial company in BIFR? (b)Whether the company is in the business of publication of newspaper and not in the business of printing so as to be reckoned as a scheduled industry?, and (c) Whether the reference filed on the basis of provisional accounts for the Financial Year 2012-13 and not on audited accounts as per Section 15 of SICA ought to be registered? After initially granting conditional regist .....

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he order passed by the Secretary - BIFR and dismissed the appeal. In the writ petition filed by the Defendant challenging rejection of their appeal by Chairman - BIFR, the Division Bench of Delhi High Court passed the following order : We have heard the Learned Counsel for the Petitioner as well as the Learned Counsel for the BIFR. We have also heard the Learned counsel for some of the Creditors including Canara Bank. After hearing the Counsel for the parties it has been agreed that the order da .....

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the parties that the issue of the validity of registration be considered by the Board. Consequently, we direct that the Board shall consider this question in the first instance. The learned counsel for the creditors submits that, they are entitled as a right to be present on the date on which the Board will hear this question. However, for better safety they shall be moving an appropriate application on or before the date on which the Board is to hear the matter and that application would be he .....

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is that of the Chairman of the BIFR, it would be appropriate if the Chairman is not a member of the Bench which hears the matter on 18.02.2014 on the issue. We may it clear that we have not expressed any opinion on the merits of the case. The writ petition stands disposed off in the above terms. All pending applications also stand disposed off. In other words, what Delhi High Court wanted BIFR to do was to consider the question of registration of reference. At this stage, the BIFR obviously was .....

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ional registration was valid or not, the matter could not be said to have progressed beyond the stage of Section 15(1) of SICA so as to attract the provisions of Section 22. 8 Learned Counsel for the Defendant submits that the Board, as per the orders of Delhi High Court, was not considering whether to register a reference, but whether the registration earlier granted conditionally by the Registrar was a valid registration. Semantics apart, there is no substance in this submission. The real ques .....

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expected to examine was the validity of the reference, that is to say, the various issues, which form part of the scrutiny at the pre-registration stage. At the end of the day, if the Board were to hold that the reference ought not to be registered and therefore, decline the reference, the result is that the reference is deemed as not having been made. In other words, at the stage of this particular inquiry by the Board, namely, whether or not the reference should be registered, the relevant st .....

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(e), 3(1)(f) and 3(1)(n) of SICA and that the reference of the Defendant company should not be registered. The Board, accordingly, held that the registration of the reference was not valid. The order of the Board in this behalf amounts to declining of a reference at the stage of Section 15(1) of SICA. The challenge to the Board's order before AAIFR under Section 25 of the Act, in the premises, does not amount to an appeal under Section 25 relating to an industrial company and cannot result .....

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of Section 22 would require an inquiry under Section 16(1) to be pending, that is to day, a registration under Section 15(1) as having been accomplished, but that at the appellate stage, a registration under Section 15(1) need not be accomplished and no inquiry under Section 16 need to be pending, but that pendency of an appeal even if it be at the preregistration stage entails a consequence under Section 22, namely, suspension of legal proceedings, contracts, etc. in respect of the company und .....

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f Section 22 to the facts of the present case. The suits are, thus, not required to be stayed. 10 Just before pronouncing this order, learned Counsel for the parties inform me that the appeal preferred by the Defendant before AAIFR has been dismissed by the latter. (That was after I heard the matter and reserved my order.) At this day, therefore, there is no pending appeal under Section 25 of SICA and the ground urged by the Defendant for seeking stay of these suits has been eliminated. 11 Comin .....

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were duly transferred by Pramerica Mutual Fund (Plaintiff No.2 in Summary Suit No.280 of 2013), who was the original transferee in the secondary market to Plaintiff No.1 in Summary Suit No.280 of 2013 (and Plaintiff in the other Summary Suit) with a view to protect the interest of the former's investors. The Series 1 Commercial Papers are in de-materialised form and currently lying in the demat account of the holder. These facts are not subject matter of any serious dispute. Though the Defen .....

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borrowings and provide an additional instrument to the investors. The Master Circular of RBI permits OTC trades in commercial papers. Such trades have to be reported within a stipulated period to the Fixed Income Money Market and Derivatives Association of India ( FIMMDA ) reporting platform. There is no dispute between the parties that the trades were so reported. The RBI has assigned FIMMDA the task of prescribing operational guidelines for smooth functioning of the commercial paper market in .....

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I or the operational guidelines issued by FIMMDA so as to question either the transfer of the commercial paper from the original holder, namely, IDFC to Plaintiff No.2 or from Plaintiff No.2 to Plaintiff No.1. In fact, the correspondence between the parties, which is uncontested, clearly indicates that the Defendant had not only acknowledged the transfer of the commercial papers in favour of Plaintiff No.1, but had addressed an unequivocal and irrevocable confirmation and acknowledgement of its .....

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unsel for the Defendant before this court is the defence of lack of territorial jurisdiction of this court. It is submitted by the Defendant that it does not carry on business within the local limits of the jurisdiction of this court. It is submitted that issuance of cheques, which are stated to be dishonoured, has also taken place outside the jurisdiction of this court. It is important to note in this behalf that the suits are filed in this court on the basis of accrual of a substantial and mat .....

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ich the proposer signifies his willingness to do or abstain to do anything, in this case to pay. The proposal becomes a promise only when it is accepted, though to create such promise it is not necessary that there should be an acceptance in writing. The promissee may simply accept the promise before the action. The communication, thus, of the promise to the promissee is complete only when the promissee receives such communication at which place alone he can be said to have signified his accepta .....

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