TMI Blog2020 (5) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... the side of respondent No. 2 company to apply the said amount so received against the cheques in question in respect of which the complaints are pending. Liability against the respondent No. 2 company is around 14 Hundred Crores and the cheque(s) amount are only part of the money payable by the respondent No. 2 company. Moreover, in view of Section 60 of the Indian Contract Act, in a case, where the debtor has omitted to intimate, and there are no other circumstances indicating to which debt the payment is to be applied, it is the discretion of the creditor to adjust the payment against any lawful debt actually due and payable to him from the debtor - there is nothing on record to suggest that there were any specific directions by the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial assistance from respondent No. 1. The repayments were scheduled to be provided in accordance with the agreed terms, as recognized in the Letters of Credit, opened by respondent No. 1 in favour of their beneficiaries. Towards its existing liabilities, the respondent No. 2 company provided 35 cheques at a value of ₹ 5.00 Crores each. Owing to the defaults committed by the beneficiaries and the beneficiary bank, respondent No. 2 company was unable to recover their dues. 4. On presentation, the cheques held by respondent No. 1 as collateral security were dishonoured. Subsequent to the dishonour of these cheuqes, respondent No. 1 filed various complaints U/s 138 N.I. Act against respondent No. 2 company and its directors for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal complaint(s) be duly withdrawn/dismissed. 8. The Ld. MM vide order dated 30.08.2018 dismissed the application of the petitioner, observing that there was nothing on record to show that amount so received by respondent No.1 was with respect to the cheque(s) in dispute. 9. It is averred that a sum of ₹ 5 million US Dollars admittedly received by respondent No. 1 must be deducted from the total outstanding of respondent No. 2 company which would lead to a reduction of respondent No. 2 company s debt and in the absence of any debt no recovery proceedings U/s 138 of the NI Act can lie. 10. The counsel for the petitioner has argued on the lines of his petition. His main thrust of argument is that since respondent No. 1 admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitations of suits. 13. In the instant case, though admittedly, an amount of 5 million US Dollars have been received by respondent No. 1 from M/s Roseberry Global FZE, Sharjah, who according to the petitioner is one of the debtor(s) of respondent No. 2 company but there is nothing on record to suggest that there were any such directions from the side of respondent No. 2 company to apply the said amount so received against the cheques in question in respect of which the complaints are pending. 14. Liability against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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