ASHOKE KUMAR DASADHIKARI, J. - (1.) THIS winding up application is coming up for admission. The petitioner has a letter of credit limit from its bankers and establishes of credit on behalf of its customers or otherwise arrange finance when the customer do not have means to make immediate payment for goods to be purchased by them. Petitioner also stores and handles newsprint for its customers. Being approached by the Company from time to time and being informed by the Company that they had directly placed orders on different mills and have purchased newsprint but did not have the fund to pay the basic price of such goods, taxes, transportation costs, etc., the petitioner agreed to procure the newsprint from such mills upon making all payments and to arrange storage of newsprint reels in its godown, insure the goods and to deliver the same to the Company. The petitioner agreed to perform this job on some terms and conditions for which an agreement was entered into. The terms and conditions of the agreement entered into by and between the Company and the petitioner reads as follows: - PRICE INCLUSIVE OF BASIC PRICE, EXCISE & TAX AT PREVAILIG RATE, CESS TRANSPORTATION FROM MILL TO DESTINATION 45 DAYS INTEREST, STORAGE CHARGES AND OUR SERVICE CHARGES. PAYMENT BY CASH OR CHAQUE IN OUR FAVOUR WITHIN 45 DAYS OF DISPATCH OR BEFORE DELIVERY OF GOODS WHICH EVER IS LATER. IN CASE PAYMENT IS DELAYED PAYMETS WILL BE FIRST ADJUSTED WITH OVERDUE INTEREST AND OVERDUE SERVICE CHARGES THEN WITH ORIGINAL BILL VALUE. VARIATION 10%[+/-] VARIATION IN QUANTITY & VALUE ALLOWED. OVER DUE INTEREST AT BANK RATE ON ALL OUTSTANDING RROM 45TH DAY FROM THE DATE OF DISPATCH OR FROM THE DATE OF DELIVERY. OVERDUE SERVICE CHARGES 1% PER MONTH (M.C.B.) ON ALL OUTSTANDING FROM 45TH DAY FROM THE DATE OF DISPATCH OR FROM THE DATE OF DELIVERY. DUE DATE DUE DATE WILL START AFTER 45 (FORTY FIVE) DAY FROM THE DATE OF DISPATCH. TRANSPORTATION FROM MILL TO DESTINATION TO BE ARRANGED BY YOU/US AT OUR COST ON YOUR BEHALF. LOCAL TRANSPORTATION FROM OUR GODOWN TO YOUR PLACE TO BE ARRANGED BY YOU AT YOUR COST. STORAGE IF REQUIRED BEYOND 45 DAYS TO BE PAID BY YOU ON ACTUALS OR @ RS.65/- PMT PER MONTH WHICH EVER IS HIGHER FROM 45TH DAY FROM THE DATE OF ARRIVAL OF GOODS. DUTIES & TAXES CST 2% AND CESS INCLUDED IN THE ABOVE PRICE AGAINST ?C? CROM AND VAT ETC. EXTRA, IF ANY/APPLICABLE. INSURANCE INCLUDED IN THE PRICE. OTHER CHARGES ALL OTHER CHARGES OR TAXES OTHER THAN MENTIONED HEREIN WHETHER APPLICABLE NOW OR SHALL BE APPLICABLE IN FUTURE RELATING TO THIS CONSIGNMENT SHALL, BE BORNE, PAID AND DISCHARGED BY YOU. DOCUMENTS & PAPERS A) YOU WILL SEND US YOUR LATEST AND VALID R.N.I CERTIFICATE. B) YOU WILL GIVE WAYBILLS ? 3 (THREE) OR AS REQUIRED FROM TIME TO TIME. C) YOU WILL SIGN ALL NECESSARY PAPERS, AGREEMENTS, DOCUMENTS AND CONFIRMATIONS AS MAY BE ESSENTIAL AND REQUIRED EITHER AT PRESENT OR IN FUTURE RELATED TO THIS CONTRACT AND FOR INSURANCE CLAIM. D) YOU WILL ISSUE NECESSARY LETTERS TO PROCURE, STORE AND HANDLE NEWPRINT ON YOUR BEHALF FOR SUPPLY TO YOU. LEGAL A) ALL LOSS & DAMAGES SHALL BE BORNE BY YOU & YOU WILL ALWAYS KEEP UP INDEMNIFIED AGAINST SUCH LOSSES AND/OR DAMAGES IF SO OCCURS DUE TO YOUR NON-PAYMENT AND/OR ACT OTHERWISE. B) IN CASE YOU FAIL TO LIFT MATERIAL WITHIN 90 DAYS FROM THE DATE OF ARRVAL AGAINST PAYMENT OF ALL COST WE MAY SALE THE MATERIAL TOWARDS REALISATION OF OUR DUES AND IS ANY VARIATION IN REALISATIN THE SAME WILL BE TO YOUR ACCOUNT BE IT HIGHER OR LOWER AND ALL STATUTORY LIABILITIES WILL BE TO YOUR ACCOUNT. OTHERS YOU MAY ESTABLISH/PROVIDE DISCOUNTABLE USANCE L/C IF REQUIRED BY YOU FOR PAYMENT OF OUR DUES. L/C DISCOUNTING CHARGES ON OUR ACCOUNT. JURISDICTION ALL DISPUTES SUBJECT TO KOLKATA HIGH COURT JURISDICTION ONLY. Mr. Chowdhury learned Counsel appearing for the petitioner submitted that as per the agreed terms and conditions the petitioner took delivery of newsprint rolls from the mill upon payment of the bills and supplied the same to the Company.
(2.) IT was further submitted by Mr. Choudhury that by a letter dated June 11, 2009 the Company have confirmed that an amount of Rs.66,27,163/- (rupees sixty six lakhs twenty seven thousand one hundred sixty three) is payable by them to the petitioner towards cost of material, overdue interest and petitioner?s charges. IT was submitted that the Company failed and neglected to make payment against the outstanding dues for which the petitioner also could not pay its banker and the banker of the petitioner had stopped operation of the petitioner?s bank account which had become irregular on account of failure on the part of the Company to make payment of its contractual dues to the petitioner. He also submitted that a meeting was held between the director of the petitioner as well as the Managing Director of the Company when they requested the petitioner for a discount in view of its precarious financial condition. By a letter dated 20th October, 2009 the petitioner wrote to the Company that a total sum of Rs.1,45,78,144.25 was due and payable by the Company to the petitioner as on 30th September, 2009. By another letter dated 20th October, 2009 the petitioner agreed to give the Company a lumpsum discount of Rs.18,00,000/- provided the Company pay off all its dues by 30th November, 2009 in two installments. In reply to that the Company by its letter dated 20th October, 2009 and 26th October, 2009 wrote to the petitioner that they have purportedly overcharged the Company for the newsprint supply and that other publications had purchased newsprint at lower rates, etc. The Company in its letter dated 26th October, 2009 purportedly claimed that the petitioner purportedly agreed to a reduction of Rs.1000/- per metric tonne on all newsprint supplied since January 2007 till that date which according to the petitioner are all incorrect and untrue. Mr. Choudhury, learned Counsel appearing for the petitioner submits that individual orders placed by the Company directly upon the mills concerned specially mentioning the price at which the Company had agreed to purchase the newsprint contracted for. The petitioner is not the newsprint seller or supplier but was only financing the purchases made by the Company. He submitted that having specifically contracted with different mills to purchase diverse quantities of newsprint at specific rates and having specifically contracted with the petitioner to finance the Company?s purchases and having duly received and consumed the ordered newsprint, it is not open to the Company to allege that the Company had erroneously contracted to purchase newsprint at higher than market rates. It was submitted that a total sum of Rs.1,51,73,185.62 remained due and owing to the petitioner from the Company as on 30th November, 2009 in terms of the diverse contracts entered into by and between the petitioner and the Company. The offer of discount as offered by the petitioner conditional upon the Company paying of its entire dues in terms of thereof and no longer remained in force as the Company failed to comply such condition. It was submitted that the Company failed and neglected to make payment to petitioner?s dues and a statutory notice under Section 434 of the Companies Act, 1956 demanding the aforesaid sum of Rs.1,51,73,185.62 together with contractual interest and contractual overdue service charges calculated from 1st December, 2009 until the date of payment was claimed and the said notice was duly served upon and received by the Company as its registered office on 9th December, 2009. The Company duly replied to the said notice by the letter dated 22nd December, 2009 through its Advocate and in the reply it was wrongfully alleged that the petitioner had been acting as an intending agent of various newspaper mills and had purportedly charged higher rates for newsprint from the Company than the petitioner had charged other consumers of newsprint over the past several years. It was submitted by Mr. Choudhury that the entire outstanding of the petitioner arises on account of the newsprint financed by the petitioner and no part whereof had been intended by the petitioner. It was submitted that the petitioner is entitled to and claims contractual overdue interest at the rate the petitioner have been charged its bankers, i.e. 15 per cent interest plus 2 per cent penal interest from the date of default until payment as well as overdue service charges at the rate of 1 per cent per month. It was submitted by Mr. Choudhury that the certificate issued by the Indian Overseas Bank, the banker of the petitioner, certifying the rate of interest charged has been disclosed by the petitioner in the petition. Thus, the petitioner claimed an outstanding on 30th November, 2009 calculated as per contract Rs.1,51,75,806.25 and also contractual overdue interest and contractual overdue service charges calculated from 1st December, 2009 until 15th March, 2010 amounting to Rs.10,99,487/- and the total unpaid amount comes to Rs.1,62,75,293.25. It was submitted that the statutory period of 21 days had elapsed since the service of the said statutory notice but the Company not paid the amount claimed thereunder or any portion thereof or to secure or compound for the same to the reasonable satisfaction of the petitioner. In support of his contention he submitted that the Company is unable to pay its debt and on several occasion adjournments were taken for coming to amicable settlement but nothing fruitful resulted. It was submitted by Mr. Choudhury that even on the prayer of the learned Advocates of the Company several sittings were held and discussions took place and ultimately on 30th August, 2011 Mr. Supriya Ranjan Saha, counsel appearing for the Statesman submitted before the Court that his client is agreeable to settle the dispute paying an agreed amount of Rs.6,05,00,000/- against three claims made in three winding up applications. He also submitted that if the entire amount could be paid by the Company in that event there would be no question of paying any further interest by the Company. If payment is made by installments then they would pay interest. Mr. Choudhury learned Counsel representing the petitioning creditor took time for taking instruction from the petitioner. The matter was fixed thereafter on Monday. Ultimately the Company through their learned Senior Counsel Mr. S. B. Mookherjee submitted that the Company is agreeable to make payment as settled but they will make payment by easy installments and they will not pay any further interest on the unpaid amount during the period of making installment payments. It was submitted by Mr. Choudhury that his client is required to pay the interest as fixed by Indian Overseas Bank for the overdrawn amount and, therefore, the Company is to pay interest at the rate which is fixed by the Bank for the unpaid amount till the date of payment.
(3.) MR. Choudhury submitted that there is no bona fide defense on the part of the Company specially when the basic price was fixed by the Company when they placed order for supply of newsprint before the mill. The petitioner has no roll to play there. The petitioner is to pay the price as agreed with other taxes and/or cess and also for carrying the goods from the mill to godown and thereafter supply the same to the Company and there is no scope to increase the basic charges and/or rates as alleged by the Company. He also submitted that the terms and conditions of the contract is clear and specific and the price quoted in that agreement is the agreed price and the company did never raised any objection to the same. MR. Choudhury submitted there is no scope for making any overcharge and this plea was an after thought and not at all a bona fide one. He submitted that the Company is unable to pay its debts and, therefore, the order of winding up should be passed in favour of the petitioner. It was submitted by Mr. Choudhury that after service of the statutory notice by the petitioner, the Company filed a civil suit before this High Court which is defective and no attempt was made to remove the defects to the said suit even after the present winding up proceedings were instituted. He submitted that the winding up notice issued on 9th December, 2009 and the suit was failed by the Company on 8th January, 2010, presented on 10th February, 2010and defects were removed on 24th March, 2010 thereafter the summons were issued.;