- (1.) The petitioner claims on account of the unpaid amount in connection with an intercorporate deposit. THE petitioner made a deposit with the company. Some part payments were made by the company and by a letter of August 14, 2007 the company sought to offer an amount of Rs. 11,96,086.28/- as full and final settlement in respect of the balance sum due. THE company says that upon the petitioner encashing the cheque for such amount and protesting the condition imposed subsequently, the petitioner accepted the company's offer of the reduced payment and does not have any further cause to pursue.
(2.) The company says that in any event the claim is barred by the laws of limitation. Since the company's letter is dated August 14, 2007 where there is an acknowledgment of indebtedness - indeed, there is admission of indebtedness - no question arises of the claim being barred by limitation. The company's letter of August 14, 2007 needs to be seen in its entirety; "We must thank you for having been patient with us, and appreciative of our constraints. With our limited resources, we have made every endeavour and have been able to repay 65% of the outstanding amount despite severe constraints. We are unable to arrange sufficient funds for the balance. In order to close the matter once and for all, we are enclosing herewith Cheque No. 214072 dated 14 August, 2007 drawn on United Bank of India for Rs. 11,90,086.28, representing 25% of the balance outstanding (i.e. bringing the total repayment upto 70% of the original outstanding) on the condition that it is accepted in full and final settlement of the entire balance dues and trust that you will accept the above cheque to close the long outstanding issue. Please note that the above is our final offer and is valid for 30 days from the date of this letter within which the cheque should be encashed." The company would have one believe that a debtor may offer part payment to the creditor on condition that the creditor's acceptance of such part payment would amount to the complete discharge of the debt. The petitioner in this case was faced with this dilemma upon receipt of the company's letter of August 14, 2007 and the cheque for Rs.11 lakh and odd: it could either refuse the money and inform the company accordingly; or it could encash the cheque and record its protest thereafter. If the petitioner refused to encash the cheque, there was no certainty that it would recover any further money.
(3.) A creditor who has been kept waiting for a considerable period of time, as would be evident from the company's letter of August 14, 2007, cannot be expected to spurn the offer of part payment in the wake of an offer of the kind that this company had made. It would always be open to a creditor to accept whatever payment is on offer and spurn the condition attached thereto contemporaneously with the receipt of the payment. If the petitioner had kept quiet after having encashed the cheque and had not responded to the company within reasonable time, the matter may have been different. It is an utterly absurd condition that had been imposed by the company in the letter of August 14, 2007. Just because the petitioner encashed the cheque, the petitioner would not be precluded from pursuing the balance, admitted sum. The company's defence is non-existent and it is liable to pay the petitioner the balance sum of Rs. 35,69,913.72/- together with interest at the rate of 12% p.a. from the respective due dates as indicated in the statutory notice of July 17, 2008.;