HIGH COURT OF CALCUTTA

Braithwaite & Co. Ltd., In re

SANJIB BANERJEE, J.

C.P. No. 372 of 2012

FEBRUARY  5, 2013

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JUDGMENT

1. The petitioner claims on account of goods delivered and services rendered as a sub-contractor engaged by the company in course of the company undertaking work for the railways. The petitioner refers to an admission contained in a letter dated January 5, 2011 where the company had admitted to the railway board that the company owed an amount of Rs. 26,08.858/- to the petitioner. The petitioner says that there can be no dispute as to such part of the claim. The petitioner also relies on invoices and other material in support of the balance principal claim of the petitioner. The total amount claimed by the petitioner from the company is Rs. 31,77,331/- by way of principal.

2. The company’s short defence is that the petitioning-creditor and a company by the name of Simplex Engineering and Foundry Works Limited are part of the same stable and the company dealt with both sub-contractors together; that the company has a substantial claim in excess of Rs. 22 lakh against the sister concern of the petitioner which has remained unresolved; and, in such circumstances, particularly when the petitioner’s claim in excess of Rs. 31 lakh is not substantiated by any admission made on behalf of the company, the petition should not be admitted.

3. It is the petitioner’s response to such defence that even if it is assumed that the petitioner and Simplex Engineering and Foundry Works Limited are part of the same group of companies, unless there was an express agreement between the parties that the dues of the petitioner’s group on the one hand had to be seen collectively against the dues of the company, the company’s claim against the petitioner’s associate concern cannot be set off against the petitioner’s claim against the company.

4. It, however, appears from a letter dated September 5, 2009, a copy whereof has been included in the petition, that the petitioner herein not only demanded payment of its dues, but also referred to the issues between the company and the petitioner’s associate concern. From the tenor of the letter of September 5, 2009, it would be evident that the petitioner had authority to deal with the issues between the petitioner’s associate concern and the company. In the light of such letter and the contents thereof, the company’s defence cannot be rejected out of hand that the two transactions were linked and a part of it cannot be seen in isolation.

5. Nevertheless, it appears from the company’s admission of January 5, 2011 that it asserted that it owed the petitioner a sum of Rs. 26,08,858/- and it had a claim against the petitioner’s associate concern in the sum of Rs. 22,80,646.05. Even if the letter is taken on face value and the veracity of the assertions therein are not questioned, it appears that there is an unequivocal admission by the company of it being indebted to the petitioner in the sum of Rs. 3,28,211.95 if the two figures of Rs. 26,08,858/- and Rs. 22,80,646.05 are reconciled. It is the same sentiment which is reflected in the company’s affidavit, at paragraph 11 whereof the figures are repeated and the company has questioned the petitioner’s claim only to the extent of the same exceeding Rs. 26,08,858/-.

6. CP No. 372 of 2012 is admitted for the principal sum of Rs. 3,28,211.95 together with interest thereon at the rate of 6% per annum from August 1, 2012 since the statutory notice was issued on July 31, 2012. If the company pays off such principal sum together with interest thereon at the rate indicated within four weeks from date, the petition will remain permanently stayed. In default, the petition will be advertised once in The Statesman and once in Bartaman. The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with.

7. The balance claim of the petitioning-creditor is relegated to a suit.

8. There will be no order as to costs at this stage.

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