TMI Blog2017 (8) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount found already due and payable to the petitioner with interest at the rate of 8% per annum with effect from 14.08.2016 when the statutory notice was served on the respondent company. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the Provisional Liquidator. - CO.PET. 896/2016 - - - Dated:- 4-8-2017 - MR. YOGESH KHANNA, J. For The Petitioner : Mr.Rajesh Banati and Mr.Vikram Singh, Advocates For The Respondent : Mr.Praveen Kr Singh, Mr.Utkarsh Singh and Mohammad Ziauddi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoices of ₹2,93,57,829/- but denied any amount, much less of ₹27,67,897/- is outstanding. The respondent alleges that its debit notes worth ₹20,33,046/- towards short supply/ non-providing of the services have been ignored by the petitioner, as stated in para 9 of preliminary objections in its reply. It read as under:- 9 . It is submitted that if the entire payments as mentioned herein above made by the respondent to the petitioner by way of debit notes amounting to Rs . 15,00,000 /- and deductions amounting to Rs . 5,33,046 . 25 towards short supply are taken into account, it will be seen that the respondent has paid an amount of Rs . 20,33,046 /-( Rupees Twenty Lakhs Thirty Three Thousand Forty S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls of handwritten debit notes on which a doubt is raised if could be a part of email dated 15.06.2016, hence alleged to be created. Nevertheless all debit notes are dated 31.03.2016, much after the supplies were made till Oct-Nov-2013. From Nov 2013 till email dated 15.06.2016 there is not even a letter or an email or any other correspondence made on behalf of respondent qua short supply of goods. The respondent further relies upon an annexure R-3 viz. a purchase order dated 10.07.2013 which contains a warranty clause which read as under:- Warranty : The material supplied by you shall be under your warranty for Any manufacturing defect, bad workmanship or quality for a Period of 15 months from the Date of supply or 12 month from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods under first invoice were received in the month of May, 2000 and under the second invoice in the month of September, 2000 . Defendant, on receipt of the goods, did not indicate to the plaintiff that the goods were defective till as late as 31 . 12 . 2001 . This was when the plaintiff had served upon the defendant a legal notice in the month of October, 2001 . x x x 29 . The long gap after which goods were ostensibly rejected on the premise that they were defective / sub - standard is clearly fatal to the projected defense in the context of statutory law being Section 41 and 42 of the Sale of Goods Act . 9. Learned counsel for respondent has referred to various judgments vis; M . Sampth vs . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of this Court observed as under:- 13 . The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner . In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt owed to the petitioner . 12. In Olam Agro India Limited vs . Mother V Impex P . Ltd 210 (2014) DLT 365 it was held as under:- 20 . The claim that the respondent had suffered 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent is raising this frivolous issue after a period of 2 years of supply of material only to wriggle out of its liability to pay the balance due to the petitioner and hence has neglected to pay without any cogent, substantial or genuine cause. It is no defence to say that the respondent has ability to pay but has choosen not to pay or that it had a lesser liability to pay. 15. In view of the above, this petition is admitted. 16. Citation be published in the Statesman (English edition) and Jansatta (Hindi edition) in accordance with Company (Court) Rules, 1959. 17. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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