- (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: - JUDGEMENT_112_LAWS(CAL)2_2012.html
(2.) 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.
(3.) It was further submitted by Mr. Choudhury that by a letter dated June 11, 2009 the Company have confirmed that an amount of Rs.3,18,34,478/- (rupees three crore eighteen lakhs thirty four thousand four hundred and seventy eight) 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 28th October, 2009 the petitioner wrote to the Company that a sum of Rs.2,97,96,087.06 was due and payable by the Company to the petitioner as on 30th September, 2009. By another letter dated 28th October, 2009 the petitioner agreed to give the Company a lumpsum discount of Rs.34,50,000/- 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 28th October, 2009 and 24th November, 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. 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 sum of Rs.3,28,58,899/- 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.3,28,58,899/- 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.3,29,39,867.00 and also contractual overdue interest and contractual overdue service charges calculated from 1st December, 2009 until 15th March, 2010 amounting to Rs.28,33,268.00 and the total unpaid amount comes to Rs.3,57,73,135.00. 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.;