PENNAL INDUSTRIES LIMITED Vs. DYNAMIC LOGISTICS PRIVATE LIMITED

JUDGEMENT

(1.) IN pursuance of purchase orders by the respondent a contract was entered into between the petitioner and the respondent for the construction of warehouse. The details of the 16 purchase orders have been annexed to the rejoinder filed on behalf of the petitioner. There were amounts due and owing by the respondent to the petitioner. On 29th January, 1998 the company citing its financial difficulties sought some time to pay the dues of the petitioner. The company stated that it was expecting the disbursement of funds from the financial institutions including amongst them ICICI and IDBI upon which the dues of the petitioner would be cleared. The company had issued three cheques in the amount of Rs. 1. 47 crores, Rs. 98 lakhs and Rs. 49 lakhs amounting to Rs. 2. 94 crores to the petitioner. These cheques were returned on 28th September, 1996 by the bankers of the petitioner on the ground of an insufficiency of funds. On 9th October 1998 the petitioner adverting to the return of the cheques called upon the company to pay the outstanding dues in the amount of Rs. 2. 45 crores or else face proceedings under section 138 of the Negotiable Instruments Act, 1881. In its letter dated 8th December 1998 the company stated that in lieu of the cheque for Rs. 1. 47 crores which was dishonoured it had issued two demand drafts in the amounts respectively of Rs. 98 lakhs and Rs. 49 lakhs to the petitioner. Similarly, in lieu partly of the cheque of Rs. 98 lakhs, which was dishonoured the company had issued a demand draft in the amount of Rs. 49 lakhs to the petitioner. In the circumstances, it would be more than apparent that of the cheques that were dishonoured the company had issued full payment in respect of the cheque of Rs. 1. 47 crores and only part payment to the extent of one half in respect of Rs. 98 lakhs. The company had cited its financial difficulties in the several letters written it by which have been adverted to earlier. In reply to the statutory notice of winding up dated 19th August, 1999, the company by its letter dated 16th September, 1999 stated that there was a difference between the actual bill of the petitioner and the "statement billing amount". The company contended that the work which had been carried out by the petitioner was not satisfactory and aluminium sheets which had been imported by the petitioner did not fulfill the specification laid down by the company in the purchase orders.

(2.) ACCORDING to the company the specification for the aluminium sheets which were to be imported by the petitioner were laid down in the purchase order dated 12th November, 1997 (Exhibit 1 to the affidavit in reply dated 31st August, 2000 ). The case of the company is that if the invoice of the petitioner which is annexed at Exhibit 24 of the rejoinder is compared with the purchase order, it would be apparent that the aluminium sheets which have been imported by the petitioner do not meet the specifications of the company. According to the petitioner, on the other hand, the aluminium sheets were required for the purposes of roofing material and the only dispute which has been sought to be raised by the company is in regard to the colour of the sheets. There is admittedly no dispute which has been raised in the quantity of the aluminium sheets or in the quality thereof. By its letter dated 22nd September, 1997 (affidavit dated 12th February 2001 Exhibit 1) the company had intimated that it required four shades of aluminium sheets "from dark blue (P5co88d) blending to blue light in equal proportion, on 50% of the area". According to the petitioner what has been imported by the petitioner is exactly in conformity with these specifications. In any event, it was sought to be submitted that the dispute which has been raised in regard to the colour of the aluminium sheets is only a ruse to get over the inability of the company to meet the outstanding dues of the petitioner.

(3.) THE Company does not deny the fact that it had addressed several letters to the petitioner acknowledging the dues of the petitioner and seeking some time to pay the outstandings in view of its financial difficulties. In para 12 of the affidavit in reply it has been sought to be suggested that "the said Fax Message have been sent as certain payments were due at that time and the order regarding Korean sheets was also given".