Anonymous
12 December 2011 at 13:08
In an Arbitration case: details of which are furnished hereunder. Kindly confirm whether my views are correct:
The claimant filed a statement of claim for certain value and for the interest thereon, under “delayed payment receivable” by an SSI Unit. In the statement of claim, they have indicated totally six Invoices raised against six lots of supplies effected on different dates to the respondent company. But out of six (6) invoices, supplies were made against L/C established by the respondent for the partial supplies and three (3) invoices were raised separately. After supplies the claimant negotiated the above said (3) three invoices and received payment through Bank against the L/C terms.
The business relations/transactions between the claimant and the respondent were spread over a period of 4 financial years. The respondent did not pay against certain invoices/supplies as the material supplied by the claimant were defective. Keeping aside the settlement of dispute on defective material value and the resultant loss, the respondent was buying material from the claimant and was releasing payment by means of cheques/DDs/L.C. At times the cheques issued by the respondent were bounced and were made good by issuing fresh cheuqes / DDs in lieu of bounced cheques.
Now when the arbitration proceedings are on, the claimant says that he has adjusted the payments received on first in first out basis viz., against the Invoices which were raised against supplies under L/C terms of payment to those which were payable by the respondent under direct credit basis. Further the claimant in his claim statement showing those invoices which he received payment against L/C as due and claiming interest also.
Also –
An admitted liability is enforceable by law and also obligatory on the part of the debtor to pay the admitted liability to the creditor.
If the creditor admits receipt of payment through an L/C against specific supplies and the relevant invoices how he can again claim payment against those bills in his claim statement filed before an Arbitration Tribunal?
Further to avoid law of limitation for a claim, for a same value of amount against a disputed supply value of earlier bills (for the reasons of defective material), the claimant says he has adjusted the value of L/C value against earlier supply bills as a practice in a running account and now showing the bills paid against an L/C as delayed payment/due.
In my view, as per the accounting practice, unless there is an understanding oral/in writing between the claimant/respondent (creditor & debtor), the claimant can not adjust the amounts received against those bills which he raised against specific L/C with those of other Bills which he raised for supplies under direct credit basis. Please guide me.
Further the claim submitted by the claimant, should not entertained by the Arbitration Tribunal, as the claimant admitted receipt of payment for the bills under an L/C.
Regards.
Anonymous
18 May 2011 at 11:03
The interest on delayed payments to Small Scale & Ancillaray Industrial Undertakings Act, 1993. Under this Act the loal Industry Facilitation Council, Commissioner of Inds.A.P.is conducting Arbitration proceedings as per section 25(a,b,c)of Arbitration & Conciliation Act 1966, with reference to Sec.23 Cl.1of Arbitration Act.
Under Cl.7 "Appeal" of Delayed Payment Act of 1993 it reads:No appeal against any decree,award or other order shall be entertained by any court or other authority unless the appellant (not being a supplier) has deposited with it seventy -five per cent of the amount in terms of the decree award or , as the case may be, other order in the manner directed by such court or, as the case may be such authority.
This clause puts undue hardship to the buyer(respondent) when the respondent has a reason to believe that the arbitration proceedings are not conducted properly or sufficient opportunity is not given to the respondent to defend his case.
Pease give your opinion in the light of the recent suprement court ruling in the case of Union of India & Ors Vs.Tantia Construction Pvtd.Ltd.,...that the consitutional powers vested in the High Court or the Supreme Court can not be fettered by any alternataive remedy available to the authorities. Injustice whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.
Narayanarao Murali
15 November 2010 at 17:18
In a peculiar case of Retirement of Physical Director of Railway Degree college, settlement dues were withheld for the confusion of Indian Railways Administration. The Railway Degree College is the only one college for entire Indian Railways and the Physical Director designation was also treated on par with other teaching / faculty (Lecturer). But one fine morning after enhancing the age limit for superannuation of teaching staff from 62 years - 65 years, the administration overlooked the post of Physica director and after some time delinked this post from teaching staff. Meanwhile the Physical Director or is immediate suprior or other higher ups were not aware of the change and the Physical Director was continuing in his services. The Physical Director accidentally when he saw the notification on an internet he immediately reported to his superior who in turn informed the Railway top officials at Delhi. Immediately when they noticed their lapse they asked the Physical Director to resign from the service. But while settlement came, they withheld the dues for the extended period of services which he has put in( served). The principles of justice during strike period say no work no pay. But for the ignorance of their own made rules, Railways are penalising a retired person and all his representations are falling on the deaf years of the Top officials who are sitting at New Delhi. My opinion is when we say no work no pay - when the department has taken his services during the extended period,that for no fault of the employee, the department can not withhold his remuneration and benefits which he eligible forthe extended period.Please comment.N.Murali
Anonymous
05 November 2010 at 16:04
In one case, before the Hon'ble Metropolitan Magistrate (HMM)the advocate for the accused appreared before the bench with a DD for for the final payment against the bounced cheque (in earlier two hearings part amounts were paid). The HMM questioned as per latest SC Norms whether the advocate of accused is depositing 10% valued of the bounced cheque. The adv.for the accused said he is not asking for closing the case as his clients are yet to pay interest for the cheque value as per the agreement, and once the complainant confirms his clients would pay interest also.HMM agreed. But the advocate of complainant said so far the accused have nevered appeared before the HMM. Immediately the HMM ordered all the accused in the case to be present beforethe court on the next hearingdate. MY APPREHENSION AND DOUBT IS IN CASE ANY OF THE ACCUSED FAILS TO PRESENT BEFORE THE HMM DURING NEXT HEARING WHETHER ANY CHANCE OF HMM TREATING NON-APPEARANCE OF ACCUSED AS CONTEMPT OF COURT AND POSSIBILITY OF ISSUING FRESH WARRANTS/SUMMONS. THE COMPLAINANT UNOFFICIALLY SAYS THEY WOULD NOT PRESS AND RAISE THE ISSUE OF NON-APPREANCE OF THE ACCUSED. MY FEELING IS THE HMM MAY TREAT NON APPEARANCE OFTHE ACCUSED AS CONTEMPT OF COURT. PLEASE GIVE YOUR OPINION
Narayanarao Murali
14 October 2010 at 16:18
The Government of India, Ministry of Labour & Employment vide their Notification No.S-38025/04/2010-SS.I dated 20.4.2010 have amended Rule 50 of ESI (Central) Rules, 1950 as a result the wage ceiling for coverage of employees under the Act has been enhaned from Rs.10,000/- to Rs.15,000/- w.e.f.1st May 2010. I need clarification on the following:
1) Which are the components that should be taken to consider Gross salary. Of Course ESI premium is calculated on basic and HRA.
2) As per the provisions of Regulation 4 of ESI (General) Regulations 1950, the first shorter contribution period in respect of all such newly covered employees shall commence from 1st May, 2010 and the corresponding benefit period for them shall commence only after expiry of a period of nine months from the date of such employment.
My query is: If the contribution period is from April to September, and if an employee was under ESI prior to end April 2010, and his Salary has been increased from 1st May from Rs.10,000/- to Rs.16,000/- whether such employee still has to contribute to ESI based on earlier contribution period i.e.April to Sep.2010 based on his earlier slab of gross salary.Please clarify. N.Murali.
Narayanarao Murali
23 June 2010 at 16:24
In India though VAT has been introduced still aged old Sales Tax Acts/Rules are followed by and large. The Sales Tax department have not geared up understand the rapid technological development. Still they say organic manure is only Farm Compost. But by industrial process by fermentation method they are not considering the item as Organic manure and terming it as Organic fertilizer and claiming 4% VAT from Manufacturers, who are helping Govt.of India, to some extent in reducing Chemical Fertilizers draining out foreign exchange. At the same time the Indusries who manufacture Organic Manure through Indl.process (as per Tax authorities:Organic fertilizer) are not eligible for any subsidies from Central/State Government and only discouraging technogical development in India with age old knowledge. At the same time Department of Biotechnology, Ministry of Agriculture, Ministry of Chemicals and Fertilisers are also not taking any action to solve the problem of frequent harassment from respective Local Sales Tax authorities demanding Sales Tax and threatening to levy penalty,interest. Is there any way.If we have to approach Tribunals and Courts the industrialists are
asked to deposit 25% or 50% before going for appeal. There is again confusing in advance ruling and appellate authorities also.Please suggest a solution.
Narayanarao Murali
23 June 2010 at 16:21
In India though VAT has been introduced still aged old Sales Tax Acts/Rules are followed by and large. The Sales Tax department have not geared up understand the rapid technological development. Still they say organic manure is only Farm Compost. But by industrial process by fermentation method they are not considering the item as Organic manure and terming it as Organic fertilizer and claiming 4% VAT from Manufacturers, who are helping Govt.of India, to some extent in reducing Chemical Fertilizers draining out foreign exchange. At the same time the Industries who manufacture Organic Manure through Industrial process (as per Tax authorities:Organic fertilizer) are not eligible for any subsidies from Central/State Government and only discouraging technological development in India with age old knowledge. At the same time Department of Biotechnology, Ministry of Agriculture, Ministry of Chemicals and Fertilizers are also not taking any action to solve the problem of frequent harassment from respective Local Sales Tax authorities demanding Sales Tax and threatening to levy penalty,interest. Is there any way.If we have to approach Tribunals and Courts the industrialists are
asked to deposit 25% or 50% before going for appeal. There is again confusion in advance ruling and appellate authorities also.Please suggest a solution.
Narayanarao Murali
15 June 2010 at 11:26
If husband dies leaving the survivors i.e.his wife and two married daughters,without any written-will,on inheritance of his self acquired property whether two (married) daughters will also have a right over the property of their deceased father's property.
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Arbitration proceedings under "delayed payments to small scale & ancillary indl.act 1993 & amdmnts
I request the Lawyers Club Members to give their expert opinion on the following. Yesterday by mistake I have not posted my name or identity. It was not intentional. Regards.
In an Arbitration case: details of which are furnished hereunder. Kindly confirm whether my views are correct:
The claimant filed a statement of claim for certain value and for the interest thereon, under “delayed payment receivable” by an SSI Unit. In the statement of claim, they have indicated totally six Invoices raised against six lots of supplies effected on different dates to the respondent company. But out of six (6) invoices, supplies were made against L/C established by the respondent for the partial supplies and three (3) invoices were raised separately. After supplies the claimant negotiated the above said (3) three invoices and received payment through Bank against the L/C terms.
The business relations/transactions between the claimant and the respondent were spread over a period of 4 financial years. The respondent did not pay against certain invoices/supplies as the material supplied by the claimant were defective. Keeping aside the settlement of dispute on defective material value and the resultant loss, the respondent was buying material from the claimant and was releasing payment by means of cheques/DDs/L.C. At times the cheques issued by the respondent were bounced and were made good by issuing fresh cheuqes / DDs in lieu of bounced cheques.
Now when the arbitration proceedings are on, the claimant says that he has adjusted the payments received on first in first out basis viz., against the Invoices which were raised against supplies under L/C terms of payment to those which were payable by the respondent under direct credit basis. Further the claimant in his claim statement showing those invoices which he received payment against L/C as due and claiming interest also.
Also –
An admitted liability is enforceable by law and also obligatory on the part of the debtor to pay the admitted liability to the creditor.
If the creditor admits receipt of payment through an L/C against specific supplies and the relevant invoices how he can again claim payment against those bills in his claim statement filed before an Arbitration Tribunal?
Further to avoid law of limitation for a claim, for a same value of amount against a disputed supply value of earlier bills (for the reasons of defective material), the claimant says he has adjusted the value of L/C value against earlier supply bills as a practice in a running account and now showing the bills paid against an L/C as delayed payment/due.
In my view, as per the accounting practice, unless there is an understanding oral/in writing between the claimant/respondent (creditor & debtor), the claimant can not adjust the amounts received against those bills which he raised against specific L/C with those of other Bills which he raised for supplies under direct credit basis. Please guide me.
Further the claim submitted by the claimant, should not entertained by the Arbitration Tribunal, as the claimant admitted receipt of payment for the bills under an L/C.
Regards.