TMI Blog2018 (2) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... o any correspondence after 17.08.2012/31.07.2013 or within 15 months after any alleged short supply. Issue of debit notes was a mere deception and cover up. Reasonable time is a question of fact, as per Section 63 of the Act, and cannot be as long as claimed by the appellant, and as rightly held by the learned Single Judge. In view of the aforesaid discussion and the fact that the appellant has raised the plea of debit notes after about 2½ years clearly proves that the debit notes raised are false and sham. Aforesaid defence regarding debit notes has been raised by the appellant in the Court to deny its liability regarding the balance due to the respondent. Hence, we fully agree with the findings of the learned Single Judge that the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid company petition be dismissed. 2. Briefly, facts and allegations in the petition filed by the respondent herein (petitioner before the learned Single Judge) are that the appellant herein (respondent before the learned Single Judge) had placed purchase orders from time to time for the supply of fan starter panel, control console panel, ventilation panel, main HVA panel and terrace panel, for different projects at separate sites. The respondent supplied the material as per purchase order from time to time. The details of 43 invoices starting from 17.08.2012 to October, 2013 are referred to in para 8 of the petition. The supplies were duly acknowledged by issuance of C Forms. The appellant had made part payments for the goods receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon its email dated 15.06.2016 and also further relied upon the Warranty Clause contained in the purchase order dated 10.07.2013. 4. We have heard the learned counsels for the parties and have also perused the record. Learned counsel for the appellant, at the outset, has referred to the Warranty Clause contained in the purchase order dated 10.07.2013, which reads 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 the Date of commission, whichever is earlier. 5. Learned counsel for the appellant submitted that in view of the above clause the appellant had issued debit notes, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a long time as acknowledgment of dues and debt; and are often relied on in commercial cases. Issue of credit and debit notes is convenient when the transaction between two commercial entities is not episodic or discrete but continuous, and adjustments in ledgers with settlement effects are made at intervals. However, the Court has to look into the notes with circumspection when they are disputed and raised after great delay because there is every possibility of the same being raised frivolously and falsely to deny the claim of the other side. Hence, whenever dispute regarding debit note is raised, more specifically in defence to a claim, the Court is bound to look into the manner, the time as well as the mechanism of raising such debit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held by the learned Single Judge. In view of the aforesaid discussion and the fact that the appellant has raised the plea of debit notes after about 2 years clearly proves that the debit notes raised are false and sham. Aforesaid defence regarding debit notes has been raised by the appellant in the Court to deny its liability regarding the balance due to the respondent. Hence, we fully agree with the findings of the learned Single Judge that the appellant has neglected to pay the balance due to the respondent without any cogent, substantial or genuine cause. Therefore, it cannot be said that the appellant has the ability to pay but has chosen not to pay or that it has a lesser liability to pay. 10. Accordingly, we do not find any flaw o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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