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Stephen Chemicals Ltd. Vs. Delhi Cloth and General Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtPunjab and Haryana High Court
Decided On
Case NumberC.A. No. 22 of 1984 in Company Petition No. 67 of 1982
Judge
Reported in[1987]61CompCas355(P& H)
ActsCompanies Act, 1956 - Sections 483
AppellantStephen Chemicals Ltd.
RespondentDelhi Cloth and General Mills Co. Ltd.
Appellant Advocate G.R. Majithia and; Arun Sanghi, Advs.
Respondent Advocate R.L. Batta, Adv.
DispositionAppeal dismissed
Cases ReferredUnisystems P. Ltd. v. Stepan Chemical Ltd.
Excerpt:
.....by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to..........is not paid within a reasonable time, in the absence of any pleadings in this respect. in our view, learned counsel is right in his contention, as no custom has been pleaded nor has any been proved. the learned single judge could not rely on the general custom of the trade. however, this fact does not make the least difference in view of the earlier finding that the appellant is liable to pay interest.5. it may be observed at this stage that learned counsel for the appellant has drawn our attention to the decisions of a learned single judge of this court in c. p. no. 77 of 1983 unisystems p. ltd. v. stepan chemical ltd. [1985] 58 comp cas 875 (p & h) and c. p. no. 87 of 1982 (stepan chemicals ltd., in re and warden and co. (india) p. ltd., in re--[1987] 61 comp cas 358 (p & h).....
Judgment:

1. We have heard learned counsel for the parties and find no merit in this appeal.

2. It is contended by Mr. G.R. Majithia, senior advocate and learned counsel for the appellant, that the appeal is liable to be admitted as a matter of routine. This contention of learned counsel is liable to be rejected straightaway in view of a Division Bench judgment of this court in Stephen Chemical Ltd. v. Innosearch Ltd., Company Appeal No. 16 of 1984 in Company Petition No. 98 of 1982 decided on July 25, 1984--[1986] 60 Comp Cas 702 (P & H). It may also be observed at this stage that notice of motion was issued in this appeal and we have heard counsel for both the parties at length and propose to deal with all the points which were raised before us.

3. It is next contended by learned counsel that there was a bona fide dispute between the parties regarding the payment of interest and that legally an order advertising the petition could not be passed. On giving our thoughtful consideration to the entire matter, we find no merit in this contention. The appellant has paid the principal amount. The question whether a bona fide dispute exists between the parties regarding payment of interest, on the facts and in the circumstances of the case, has to be decided against the appellant. In the invoices, F-l to F-6, it is mentioned that if the amount is not paid before a particular date, then the respondent would be liable to pay interest at the rate of 19.5% per annum. The goods were accepted by the respondent and no objection was raised regarding the said clause. Mr. Majithia, senior advocate and learned counsel for the appellant, submits that the footnote under the invoices could not be relied upon as it did not bear the signatures of the appellant. Reliance, in support of his contention, is placed on a single Bench judgment of this court in Delhi Automobiles v. Smt. Trishla Jain [1982] CLJ (C & Cr) 584. So far as the proposition of law that a footnote entry cannot be taken into consideration if the same is not signed is not very relevant so far as the present case is concerned. It is correct that the learned single judge has relied on this footnote entry. But, as earlier observed, we do not propose to go into this question as from the other material on the record, it is fully established that at no point of time the appellants denied their liability to pay interest. In para 7 of the petition for winding up, it is stated that from time to time, the respondent company has been confirming the correctness of and/or invoices raised by the petitioner and this averment has been admitted by the appellant in his written statement. In para 12, it is stated in the petition that on March 11, 1982, the petitioner sent a notice under Section 434 of the Companies Act, 1956, which was duly received by the company. This averment has been admitted by the appellant. In view of these two averments, it is quite evident that the petitioner (now respondent) has been claiming interest and this fact was not controverted. If the appellant had not to pay any interest, then a reply to the notice could have been certainly sent denying its liability to pay interest. In our view, the appellant was conscious that he was to pay interest and now in the winding-up petition, a plea about the non-payment of interest is being put forth without any substance in the same. Thus, it cannot be held that the dispute about the payment of interest is bonafide. The learned single judge, in the circumstances of the case, rightly held that the appellant is liable to pay interest.

4. It is next contended by learned counsel that the learned single judge has fallen in error by relying on the general custom of trade that the purchaser is liable to pay interest if the price of the goods is not paid within a reasonable time, in the absence of any pleadings in this respect. In our view, learned counsel is right in his contention, as no custom has been pleaded nor has any been proved. The learned single judge could not rely on the general custom of the trade. However, this fact does not make the least difference in view of the earlier finding that the appellant is liable to pay interest.

5. It may be observed at this stage that learned counsel for the appellant has drawn our attention to the decisions of a learned single judge of this court in C. P. No. 77 of 1983 Unisystems P. Ltd. v. Stepan Chemical Ltd. [1985] 58 Comp Cas 875 (P & H) and C. P. No. 87 of 1982 (Stepan Chemicals Ltd., In re and Warden and Co. (India) P. Ltd., In re--[1987] 61 Comp Cas 358 (P & H) (Appendix) (infra) decided on July 20, 1984, and August 17, 1984, respectively. These decisions, in our view, are on the facts of those cases and cannot be relied upon, especially when it has been found as a fact that the appellant is liable to pay interest.

6. It is also contended by learned counsel that a second petition for winding up did not lie in the wake of the dismissal of the earlier petition. This contention is liable to be rejected on the short ground that no such plea was raised before the learned single judge. Even otherwise, this plea is without any merit, as the earlier petition was dismissed as having become infructuous, as the amount had been paid.

7. No other point is urged.

8. For the reasons recorded above, the appeal fails and is dismissed, but in the circumstances of the case, we make no order as to costs.


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