R K ARORA AND SONS PRIVATE LIMITED CALCUTTA Vs. PAMPASAR DISTILLERY LIMITED CHITWADGI HOSPET BELLARY DISTRICT

JUDGEMENT

(1.) I have heard the learned Counsel representing the petitioner as also the respondents on merits. As the order sheet will indicate, there was a suggestion at one stage that the parties should resolve the matter but the Counsel informed me that this was not possible. That aspect has therefore been totally ignored by me and after hearing both the learned Counsel, the Court has decided the preliminary issues raised purely on merits.

(2.) THE petitioners contend that they had supplied a total of 1,81,650 empty bottles to the respondents as per the details set out in the petition. It is their case that the respondents have made payment for 84,770 bottles and that the payment for the remaining part of the consignment is outstanding. The usual averments have been made that despite demands etc, that the respondents have failed and neglected to make the payment and therefore after serving a statutory notice the present petition has been filed. The respondents have contested the petition. They have taken up the plea which is really undisputed, that the order was placed for 60,000 bottles and that the respondents kept supplying more quantities which are in excess of the contracted consignment which is also borne out from the record which is produced before me. They informed the petitioners that they had only asked for 60,000 bottles whereupon the petitioners requested the respondents to accept the additional quantity and the respondents as a result of what they had been asked to do took delivery of the excess quantity. It is emphasised on behalf of the respondents by their learned Counsel, which again is borne out from the documents produced before me, that the respondents informed the petitioners that they would make payments for the additional quantity as and when those bottles were used by them. Learned counsel submits that this was nothing more than a helpful obligation and that it does not fasten any liability in law to make payment for the additional part of the consignment. She also points out to me that it is undisputed that the respondents have paid for the contracted 60,000 bottles and that the bona fides of the respondents cannot be disputed because they have made payment for more than the quantity of 60,000 bottles because they did have occasion to use some additional quantity. The point raised is that after the petitioners were asked to take back the balance unused quantity if they have failed to do so, that the respondents cannot be held liable for the payment.

(3.) THERE is one other aspect which assumes some importance namely that the petitioners asked the respondents for the 'c' forms for the entire quantity and the 'c' forms were not restricted to 60,000 but were issued for the full quantity of 1,81,650. Respondents' learned Advocate clarifies that since the bottles had been supplied at a concessional rate of tax and since the request came from the petitioners to issue the 'c' forms that these were issued as per their request in order to facilitate the completion of the assessment and it is her contention that this gesture cannot again fasten liability to pay as far as the respondents are concerned. On this crucial aspect of the transaction the petitioners' learned Counsel vehemently submitted that the acceptance of the consignments, the assurance in writing that the payments would be made when the bottles are utilised and lastly issuance of the 'c' forms is conclusive proof of the finality of the transaction and that the respondents cannot resile from that position for whatsoever reason. In the course of the arguments, respondents' learned Counsel submitted before me that assuming without admitting that there was an offer to pay for the additional part of the consignments that this was conditional on the respondents using the bottles. She states that the correspondence exchanged indicates that the bottles did not meet with the specifications of the respondents and that the respondents themselves have discontinued that particular product as a result of which the bottles are lying unused for the last several years and they are willing even as of now to return the bottles to the petitioners. In sum and substance, the plea that is raised is that not only has a dispute been raised but that it is a bona fide dispute and that having regard to the well-settled position in law that the Court must dismiss the winding up petition if it pertains to a disputed claim, this Court must refer the parties to a Civil Court for adjudication.