Judgment:
ORDER
1. Messrs Modern Woolens Limited, a company registered in Jaipur (Rajasthan) is the creditor of Dass Carpets Private Limited, having its registered office at P.O. Khamaria, district Varanasi, in U.P.
2. Dass Carpets Private Limited, hereinafter referred to as the company placed orders for carpet yarn with Modern Woolens Limited during the year 1981-82, 1982-83, 1983-84 and 1984-85. The payments against the goods supplied were never made. Thus, after a protracted correspondence, the petitioner served a notice under Section 434 of the Companies Act, 1956 dated 4-7-1987 putting it on caution that if the payments due were not discharged, they will be constrained to move a petition seeking winding up of the Company. The debt continued to remain and this, the company petition was filed.
3. The contention in the company petition is that in the notice, a sum of Rs. 4,55,302-70 was claimed as the principal, with such interest which accrues on it. Thi was the claim of the petitioner on the company.
4. After the aforesaid notice was sent to the company, the petitioner was filed on 8-5-1989, and the matter was remained pending all this time without a counter affidavit being filed. The reason for this is that the company sought indulgences from the court that it would discharge the debt. Thus, on 9-5-1991 a Bank Draft for Rs. 1,00,000/- and three cheques for Rs. 75,000/- each were deposited. This represented a sum of Rs. 3,25,000/-. Besides, a sum of Rs. 1,00,000/- was received by the petitioner during the pendency of the company petition. Thereafter, a payment of Rs. 30,000/- through three cheques of Rs. 10,000/- each was also received by the petitioner during the pendency of the company petition. The payment received by the company during the pendency of the company petition are Rs. 4,55,000/-.
5. But there is an unfortunate circumstance, which the court must take notice of.The three cheques which were deposited in court, dated 9-5-1991. of Rs. 75,000/- each amounting to Rs. 2,25,000/- after being received by the petitioner and put into clearing were dishonoured by the Company's bankers. This is a serious matter, as the payment brought into court comes on the faith that it will be available to the court for disbursement. The cheques of the company were dishonoured, whatever be the reason, imply that the moneys mentioned in the cheques continued to be available to the company for its own use.
6. The court took serious note of this aspect in its order of 27-8-1991. Today, two Bank Drafts, one of Rs. 1,00,000/- and another Rs. 1,25,000/- made out in the name of the petitioner (Modern Woolen Limited) have been placed before the court. This is the amount which represented the cheques which were not honoured by the bankers of the Company. These bank drafts have been turned over to learned counsel for the petitioner by the court.
7. The principal amount, thus, stands discharged.
8. The court was going to consider the interest which the petitioner ought to receive for a period during which the company petition has remained pending in court. Learned counsel for the company pleaded that the payment of interest may not be ordered by court as the company is in straitened circumstances. The court declined the request on the ground that if there will be any waiver, then in equity it must come from the creditor, that is, the petitioner. Learned counsel for the petitioner submitted on instructions that his clients are prepared to waive the interest, which may be due on the principal, but only in reference to the payments on which the court passed orders on 27-8-1991. Learned counsel submitted that beyond this it may not he misunderstood that the interest as a claim has been waived and further he has instructions to press for the costs on the petition.
9. The submission of the petitioner is reasonable and in these circumstances thecourt hereby clarifies that regarding interest, which was directed to be deposited representing the delayed payment of Rs. 2,25 lacs, the interest stands waived upon the concession by the petitioner. The concession is to the effect that in context of the order dated 27-8-1991, the interest on the dishonoured cheques, brought into court again, between the date of the notice under Section 434, as of date is waived.
10. In sofar as costs are concerned, the petitioner is entitled to the costs on the company petition. The costs shall stand at Rs. 2000/- in addition to the costs incurred in taking out the citations, the court has had to make a direction on costs for the reason that the court has not appreciated that during the pendency of the petition the payment brought into court by cheques, were not honoured for payment. The memoranda of costs will be drawn up by the registry. Learned counsel for the company submits that the costs would be paid within two weeks.
11. The petition succeeds to the extent that an admitted debt was due and has been discharged as a result of the company petition to aviod an order of winding up.
12. Order accordingly.