Judgment:
1 ORDER
SHEET APO No.209 of 2014 CP No.18 of 2014 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE AGRITRADE INDIA SERVICES PVT LTD Versus R.
PIYARELALL IMPORT AND EXPORT LTD.BEFORE: The Hon'ble JUSTICE BANERJEE, ACTING CHIEF JUSTICE The Hon'ble JUSTICE ARIJIT BANERJEE Date : 4th August, 2014.
Appearance: Ms.Manju Bhutoria with Mr.S.Panda, Ld.
Advocates for the appellant.
Mr.Kuldip Mullick, ld.
Advocate For the respondent.
The Court :- This appeal would relate to a transaction, for that the appellant would contend, they advanced a sum of Rs.84,37,500/-.
The appellant, however, could not make equivalent supply.
There had been short supply that the appellant admitted.
Parties thereafter settled the issue and the respondent agreed to refund the balance sum.
They paid Rs.35 lac keeping the balance sum of Rs.18,74,856/as outstanding.
The respondent would claim, the sum of Rs.35 lac was in full and final settlement and after receipt of the said sum, the appellant deliberately made a claim that would have no basis whatsoever.
The appellant filed a winding up petition that the learned Judge permanently stayed.
The appellant relied on electronic messages wherefrom we find, parties agreed to settle it at Rs.15 lac.
The appellant agreed to accept.
Even a post dated cheque for the said amount of Rs.15 lac was to be issued that the respondent failed to give as we find from the messages.
The respondent in their affidavit would dispute the messages by contending, those were personal messages exchanged between the Directors of both the Companies.
They would, however, not deny the veracity of those messages.
The learned Judge was of the view, it was “unclear” how the Company agreed to refund the said sum of Rs.15 lac.
The relevant extract is quoted below: “Since it is unclear as to how the petitioning creditor says that the company had agreed to refund a sum of Rs.15 lakh against the petitioner’s claim of Rs.18 lakh and odd and since circumstances electronic the leading mail petition up messages to does the that not issuance the explain of petitioner the the several relies on, there appears to be substantial doubt as to the basis of the claim.
Since the winding-up Court does not act as the debt-collector for a creditor and the Court is only concerned with the solvency of the company, CP No.18 of 2014 is permanently stayed and the claim of the petitioningcreditor is relegated to a suit.” Being appeal.
We aggrieved, have heard the the appellant parties at has come length.
up Ms.in Manju Bhutoria, learned Counsel appearing for the appellant, would contend, since the payment was admitted followed by supply and refund of sum of Rs.35 lacs, the appellant was entitled to the balance sum.
She would rely upon the electronic messages to show, the Company unequivocally admitted a sum of Rs.15 lac as their liability and wanted to repay the same through post dated cheque as would appear from the said messages.
Mr.appearing for the Kuldip respondent Mallick, being led learned by Mr.Counsel Ratnanko Banerjee, learned senior Counsel would submit, the electronic messages were consideration, personal.
Even it not would if those co-relate are with taken the into present transaction that we are considering in this appeal.
According to him, the delivery orders would show a different date other than the transaction talked about in the message.
According to him, after receipt of the said sum of Rs.35 lac in full and final settlement, the appellant was not entitled to any sum and the learned Judge was right in rejecting the same.
We have considered the rival contentions.
Had the e-mails not been there, we would have confirmed the judgment and order of His Lordship, but for the e-mails we cannot brush aside the claim of the appellant.
At the same time we doubt the bonafide of the respondent as to their defence.
It is a fit and proper case where we should relegate the parties to suit putting the respondent on terMs.Mr.Mallick would inform us, it is a cash-rich company having worth of Rs.10 crore.
We would ask them to set apart a sum of Rs.15 lac in a suitable interest bearing fixed deposit account in any Nationalized bank of their choice and keep the fixed deposit receipt with the Registrar, Original Side of this Court to be kept renewed from time to time earmarked for the credit of the suit that the appellant would be at liberty to file.
In default of deposit being made within 8 weeks from date, the winding up petition would stand admitted for the said sum of Rs.15 lac and the appellant would proceed accordingly.
In case of default in filing of the suit, within a period of 6 weeks from the date of communication of such factum of deposit, the respondent would be free to withdraw the said fixed deposit from the Registrar, Original Side.
The appeal is, thus, disposed of without any order as to costs.
(BANERJEE,ACJ.) (ARIJIT BANERJEE, J.) dg/