Delhi High Court
Super Fine Meat Suppliers vs Bharat Hotels Ltd. on 29 October, 2003
Equivalent citations: 108(2003)DLT542
Author: Mukundakam Sharma
Bench: Mukundakam Sharma
ORDER
Mukundakam Sharma, J.
1. This petition is filed by the petitioner praying for an order of winding-up of the respondent company on the ground that the respondent is indebted to the petitioner and that the respondent has refused and/or neglected to pay the dues of the petitioner in spite of the demand notice served on it.
2. The petitioner entered into an agreement on 1.6.1997 with the respondent for supply of mutton to the respondent for a period of 12 months at the agreed rate as mentioned in the agreement. The said agreement was valid from 1.6.1997 to 31.5.1998. At the time of entering into an agreement the petitioner deposited a sum of Rs. 1.25 lacs towards security with the respondent. Clause 2.6 of the said agreement has relevance to the facts of the present case wherein it was stipulated that the respondent acknowledges receipt of the aforesaid amount of Rs. 1.25 lacs towards security deposit. It was also stipulated therein that subject to the satisfactory conclusion of the aforesaid agreement, the security deposit shall be refunded to the supplier, namely, the petitioner upon conclusion of the term. The petitioner supplied mutton as agreed upon during the aforesaid period. The petitioner even after expiry of the period of the written agreement continued to supply mutton to the respondent on an oral agreement till finalisation of another agreement. The petitioner, however, claimed payment at an enhanced rate for the supplies made subsequent to 1.6.1998 and also claimed refund of Rs. 1.25 lacs which was deposited by the petitioner with the respondent as security deposit. Since neither payment was made by the respondent at the enhanced rate for mutton supplied for the period after 31.5.1998 nor since refund of the security deposit was made, a statutory demand notice was sent to the respondent which was received by the respondent but no reply to the same was sent. Accordingly the present petition was filed in this Court.
3. The respondent has, however, filed a reply to this petition disputing the claim of the petitioner for payment at an enhanced rate for the mutton supplied by the petitioner to the respondent subsequent to the period from 1.6.1998. It is contended on behalf of the respondent that the respondent did not agree to pay any enhanced rate for the mutton supplied to the respondent by the petitioner and that the petitioner was obliged to supply the mutton at the rate which was agreed upon under the agreement dated 1.6.1997. It is also stated that the payment for the mutton was also made by the respondent to the petitioner which was stated to have been accepted by the petitioner in respect of one bill in full and final settlement of the bill dated 30.6.1998. So far the other two bills are concerned, it is also stated by the Counsel that payment has already been made by the respondent to the petitioner at the old rate during the pendency of the winding-up petition in this Court.
4. A suit is also filed by the petitioner in this Court, which was registered as Suit No. 740/2000 claiming recovery of the amount towards payment at the enhanced rate for the mutton supplied for the subsequent period and for refund of the security deposit to the petitioner. I am informed that the said suit now stands transferred to the District Court, where it is pending for trial.
5. However, considering the facts and circumstances of the case and upon going through the records, it is proved and established that the claim of the petitioner for payment at enhanced rate for the mutton supplied after 1.6.1998 gives rise to a disputed question. As to whether or not there was a fresh agreement between the parties wherein both parties agreed for payment of the mutton supplied after 1.6.1998 at an enhanced rate is an issue which would arise for consideration and such issues which are raised are to be considered and adjudicated only after evidence is led by parties. The parties shall have to lead evidence to establish their respective cases in respect of the aforesaid issue as to whether or not the petitioner is entitled to receive amount at an enhanced rate for the mutton supplied for the subsequent period. The aforesaid aspect cannot be dealt with and decided in a petition of this nature and, therefore, the claim of the petitioner to the aforesaid extent cannot be decided in this case. The parties may agitate contentious issues relating to payment at an enhanced rate in the suit and get a decision in this suit, as the same are not decided in this proceeding.
6. However, so far the claim of Rs. 1.25 lacs is concerned, the same was paid as security deposit to the respondent in terms of Clause 2.6 of the agreement. The same was required to be refunded by the respondent after contract is concluded. However, the respondent has relied upon the contents of the letter dated 3.5.1997 written by the petitioner to the respondent wherein the petitioner apparently agreed to give Rs. 1.00 lac for the food and beverages promotional sponsorship at any time of the year. It is stated that the petitioner has not paid the said amount and, therefore, Rs. 1.00 lac could be adjusted by the respondent from that amount. After taking up the aforesaid stand, an amount of Rs. 25,000 /- was paid by the respondent which is recorded in the order dated 16.10.2003. The said cheque, I am told, hasbeen encashed. Therefore, the issue that now survives for consideration is only with regard to the payment of the balance amount of Rs. 1.00 lac. The said amount was admittedly paid as security deposit. The obligation, if any, of the petitioner to pay one lac rupees in terms of letter dated 3.5.1997 is an independent obligation, which has no relevance or bearing to the security deposit which was required to be refunded on the successful completion of the agreement. No documentary evidence is also placed on record by the respondent in this case to indicate that any assurance was given by the petitioner for adjustment of the amount against the security deposit.
7. In that view of the matter, I am of the considered opinion that the respondent is liable to pay Rs. 1.00 lac to the petitioner for which the respondent is indebted to the petitioner. At this stage Counsel appearing for the respondent states that the respondent has brought a cheque for Rs. 1.00 lac for payment to the petitioner, which is handed over to the Counsel appearing for the petitioner, which is accepted. It is observed that the aforesaid amount is paid by respondent in full and final settlement of the claim of the petitioner in respect of the security deposit, which is required to be paid and no interest is payable on the said amount. However, it shall be open to the petitioner to continue the suit which is pending for the remaining amount of the claim of the petitioner in respect of the claim for an amount at an enhanced rate for the mutton supplied by the petitioner to the respondent and for payment of the interest on that account. So far the claim of Rs. 1.25 lacs is concerned, the same stands satisfied on payment made in this Court during the pendency of this petition. Liberty is, however, granted to the respondent to raise the claim for recovery of Rs. 1.00 lac from the petitioner in an appropriate Forum or Court in accordance with law. It is made clear that the said claim of the respondent herein is not decided at all in the proceeding and is left open to be decided in an appropriate proceeding or suit, if filed.
8. The petition stands disposed of in terms of the aforesaid order.