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7. The case of the petitioner further is that at the time of execution of the agreement dated 15-4-2001 the petitioner and the respondent had mutually worked out the dues payable by the respondent to the petitioner and the same were set out in Schedule II to the said agreement dated 15-4-2001 and the methodology of payment was mentioned in Clause V.1 thereof and thereafter the liability to pay interest amounting to Rs. 7,23,890/- on account of delayed payment of monthly consideration for the period prior to 15-4-2001 was confirmed and acknowledged by the respondent vide his letter dated 8-7-2002. The petitioner has stated that the monthly compensation of Rs. 2,50,000/- payable under the agreement dated 15-4-2001 was paid by the respondent upto June, 2002 and in terms of the said agreement dated 15-4-2001 the respondent had to pay interest at the rate of 18% for delay of payment of monthly consideration for a period upto 90 days and 21% for delay beyond 90 days. The petitioner stated that though in letter dated 8-7-2002 the outstanding due on account of interest was reduced to Rs. 5,49,622/- on the ground that Ls.2000 were adjusted against the figure of Rs. 7,23,890/-, such adjustment was unwarranted and incorrect as is clear from subsequent letter dated 16-3-2003 from the respondent. The letter dated 8-7-2002 written as "without prejudice" by the respondent to Mr. Ambar Timblo shows that the interest calculated works out to Rs. 7,23,890/-. It also makes a mention that the said Managing Director Dr. Britto had confirmed with him (Mr. Ambar Timblo) that Mr. Timblo owed Ls.2000 but since the matter was not settled the respondent had deducted that balance from interest due along with interest at the same rate thereby leaving a net payable amount to the petitioner of Rs. 5,49,622/-. The petitioner, therefore, stated that the respondent-Company was due and payable to the petitioner a sum of Rs. 7,23,890/- towards interest on delayed payment prior to 15-4-2001 and Rs. 22,50,000/- towards monthly consideration for the months of July, 2002 to March, 2003, Rs. 1,51,673/- towards interest payable on the said monthly compensation till 31-3-2003 and Rs. 2,062/- towards liability on account of City Ledger. The petitioner seeks the winding up of the respondent for non payment of the said sum of Rs. 19,73,535/- which, as per Annexure 1 to the petition is as follows:

12. The respondent has stated that based on the said complaint dated 8-4-2003 the Government issued yet another notice dated 29-4-2003 to which the respondent filed its replies and the petitioner, as on previous occasions, recommenced pursuing its demands of exorbitant sums holding out that on this occasion also it would submit a written statement to the Government of Goa confirming the position that the Casino (at Chances) was indeed located in the premises which formed part and parcel of Cidade de Goa Hotel and during the course of various meetings held, this position was made clear by the representatives of the petitioner including in particular Mr. and Mrs. Anju Timblo and in the course of the said meetings it was openly stated by the representative of the petitioner that no stone would be left unturned to ensure that the license would be cancelled and further that they would proceed to even file petition for the winding up of the Company and that Mr. and Mrs. Anju Timblo addressed communications to the Government urging for expeditious disposal of the show cause notice dated 29-4-2003 and that they be heard in the matter and in fact they were heard at the personal hearing in the chamber of the Hon'ble Chief Minister and thereafter by Order dated 28-10-2003 the said Show Cause Notice was dropped and the respondent was granted a license for a period of six months in order to enable the respondent to obtain a declaration to the effect that the licensed premises are part of the Five Star Hotel Cidade de Goa pursuant to the agreement entered into by the respondent with the petitioner. The respondent stated that although the statutory notice was addressed on 21-4-2003 for a period of almost seven months no petition for winding up of the respondent-Company came to be filed and this is so because the petitioner was hopeful that pursuant to the show cause notice dated 29-4-2003 the Government would revoke the license granted to the respondent for operating the Casino and only after the Order dated 28-10-2003 of the Government that the petition came to be filed on 27-11-2003 and, therefore, it is evident that this petition has been filed to exert pressure on the respondent to give in to the unreasonable and inconceivable demands from time to time and the filing of the petition is undoubtedly gross abuse of the process of the Court. The respondent has denied that the respondent is liable to pay to the petitioner a sum of Rs. -19,73,535/- and that there is no existing liability on the part of the respondent towards the petitioner but on the contrary it is the petitioner who owes to the respondent a sum of Rs. 5,14,800/- as on 25-9-2002. The respondent has stated that it was agreed that the calculations would be done upto 15-11-2002 pending the execution of a formal renewal agreement and, therefore, that could not be done upto 31-3-2003 and as such on 13-9-2002 representatives of the petitioner and the respondent had met at the Office of the petitioner and had agreed to execute a formal agreement and the terms were discussed and agreed upon and it was agreed in particular that lease would be granted to the petitioner only in respect of the area where the gaming was being carried out and the deposit would be in the form of a Bank Guarantee but the petitioner with a view to black mail the respondent deferred the execution of a formal agreement by offering flimsy excuses. The respondent has stated that the respondent is by no means commercially insolvent and that the assets of the respondent as on 31-3-2003 is to the tune of Rs. 3,10,96,310/- of plant and machinery, Rs. 2,75,16,274/- of investment in the sister concern and Rs. 76,05,548/- by way of loans and advances and other current assets and that the respondent has employed 35 employees all of whom along with their families are dependent upon the Company for the purpose of their livelihood and that its sister concern the said M/s. Britto Amusements Pvt. Ltd. for the benefit of the respondent has recently undertaken an expansion programme by investing Rs. 11,00,00,000/- and the petitioner has been bent upon in creating hurdles in the said extension plan. The respondent has stated that the petitioner has falsely stated that in the communication dated 18-10-2003 there was no annexure to the reply dated 13-5-2003 submitted in response to the notice for winding up petition dated 21-4-2003 and it is merely because the contents of the said annexure are inconvenient to the petitioner that ignorance is being feigned. The respondent has stated that the credits which were initially given were sought to be reversed on the ground that the same were erroneous and that such a volte face apart from being mala fide was for the purpose of avoiding adjustment on the basis of which it would be apparent that it is the petitioner who is due and payable at least Rs. 5,14,806/- to the respondent and that the petitioner has deliberately suppressed the agreement between the petitioner and the said M/s. Britto Amusements Pvt. Ltd. and as per the said agreement it is the petitioner who is due and payable to the respondent amounts by way of compensation/license fees and all throughout, such amounts were duly adjusted and the net amounts payable by or to the petitioner were worked out and the departure from this accounting system consistently followed, apart from being mala fide, establishes that the respondent is not due and payable to the petitioner any amount but it is rather the petitioner which is to pay to the respondent Rs. 5,14,806/-. The respondent has stated that in terms of the agreement dated 15-4-2001 with M/s. Britto Amusements Pvt. Ltd., which agreement the petitioner has suppressed, it is the petitioner who is liable to pay compensation of Rs. 50,000/- monthly and the said suppression is deliberate. As regards the communication dated 8-7-2002 upon which reliance is placed by the petitioner, the respondent has stated that it is deliberately misinterpreted and that in the first place there arises no question of placing reliance upon "without prejudice" communication dated 8-7-2002 and that at any rate upon adjustment of the said license fees it is apparent that no amount is due and payable by the Company to the petitioner. It is rather the petitioner who is liable to pay Rs. 5,14,806/- to the respondent. The respondent has stated that Rs. 1,47,673/- was deducted towards TDS to the Government and it was agreed that the balance amount of Rs. 5,76.217/- would be adjusted by the petitioner towards the security deposit of Rs. 10,00,000/- given by the respondent to the petitioner. The respondent has placed reliance on the communication dated 9-10-2002 wherein it is stated that the petitioner was agreeable to adjust the respondent's outstanding dues from the security deposit. The respondent has stated that the monthly consideration of Rs. 2,50,000/- after payment of TDS from July, 2002 to 15-11-2002 was to be adjusted towards the balance of security deposit, lease rent payable to M/s. Britto Amusements Pvt. Ltd. for the same period and the amounts owed to the respondent Managing Director by the Director of the petitioner for monies spent/advanced by the said Managing Director to the Directors of the petitioner. The respondent has stated that there was nothing incorrect in the adjustment of Ls. 2000 (Rs. 1,51,000) which amount was admittedly received by Shri Auduth Timblo for and on behalf of the petitioner and merely because Shri Auduth Timblo has not adjusted the said amount for reasons best known to him in the accounts of the petitioner, such adjustment becomes neither unwarranted nor incorrect. The respondent has stated that there is no denial with regard to the receipt of Ls. 2000 in the U.K. and apart from the said amount of Ls.2000 another amount of Ls. 6650 (Rs. 5,02,075) was paid to the petitioner through Shri Auduth Timblo in the U.K. and the petitioner has deliberately avoided adjustment of the said amount and upon such adjustment being made, it is apparent that it is the petitioner who is due and payable to the respondent Rs. 5,14,806/-. The respondent has stated that since the letter dated 8-7-2002 was "without prejudice" there is no question of placing any reliance upon the same. The respondent has stated that the communication dated 16-3-2003 graphically describes the conduct of the petitioner and it records the insistence of Shri Amar Timblo that the land belonging to M/s. Britto Amusements Pvt. Ltd. be leased out in its entirety to the petitioner and the collateral pressure being exerted upon the respondent in that regard. As per the respondent, Rs. 5,14,806/- are payable by the petitioner as follows:

13. The respondent has stated, in further affidavit dated 27-4-2004, that the wedding of Shri Ambar Timblo, the son of Mr. Auduth Timblo and Smt. Anju Timblo was held at Landmark Hotel in London on 28-6-1999 and at the request of the said Timblos the respondent's Managing Director Dr. William Britto made all arrangements on the understanding that the payments which would be made would be adjusted in the accounts of the respondent and its dealings with the petitioner and accordingly the said Managing Director deposited with the Landmark Hotel, London Ls.5650 by cheque and the total expenses of the wedding reception held on 28-6-1999 was Ls.5079.35 and with the consent of Shri Auduth and Shri Ambar Timblo a sum of Ls.570.65 was paid to the butlers, waiters, etc. and a sum of Ls.900 to 1000 was paid towards flowers, etc. with the knowledge of the said Shri Auduth and Shri Ambar Timblo and inspite of solemn assurances that the petitioner has now made a volte face and has gone to the extent of denying receipt of the said amount. The respondent has produced the Invoice issued by the Landmark, London in the name of Chances, Cidade de Goa to support the said averments and has further stated that the respondent would be ready and willing to produce a statement from his Bankers in proof of the deposit made with Landmark Hotel, London. The respondent has stated that the said fact of receipt of Ls.2000 was reflected in the communication dated 8-7-2002, a communication on which the petitioner itself has placed reliance and there has been no communication denying the receipt of Ls.2000 and the denial has come for the first time in the affidavit in rejoinder which denial is patently false and mala fide. The respondent has stated that the petitioner has purported to include even the amount which have been deemed to have been received by the petitioner by way of TDS and at one stage the petitioner gave credits in respect of such payments but subsequently the petitioner made a volte face and stated that the credits were erroneously given. The respondent by another affidavit dated 6-8-2004 has stated that after the Order of the Government dated 28-10-2003 by which the show cause notice dated 29-4-2003 was dropped the respondent filed Special Civil Suit No. 44/2004 on 27-4-2004 before the Court of C.J.S.D. at Panaji praying therein that the agreement dated 1-1-1999 between the petitioner and the respondent is still subsisting and shall continue to subsist till the year 2012 and for further declaration that any other negotiations which may be construed to having culminated into any agreement subsequent to agreement dated 1-1-1999 are invalid, null and void and also for permanent injunction to restrain the petitioner from publishing on any magazines, newspapers, etc. to the effect that the relationship between the petitioner and the respondent has come to an end and also raising a claim against the petitioner in the sum of Rs. 17,27,951/- with interest at the rate of 18% per year. The respondent has stated that the respondent filed along with the said Civil Suit a C.M.A. No. l35/2004/B for temporary injunction and that the learned C.J.S.D. by his Order dated 31-7-2004 has been pleased to grant the said application for temporary injunction partially. The respondent has stated that there is a serious dispute between the respondent and the petitioner. In another affidavit dated 22-8-2005 the respondent has stated that the petitioner challenged the Order dated 31-7-2004 of the learned C.J.S.D., Panaji, before this Court in Appeal From Order No. 54/2004 and this Court by Judgment/Order dated 23-6-2005 has been pleased to dismiss the appeal and further this Court was pleased to direct the respondent to deposit a sum of Rs. 10,00,000/- which has been deposited and to continue depositing a recurring amount payable to the petitioner as per the agreement and the same are being deposited by the respondent.

23. As regards the indebtedness or liabilities of Rs. 7,23,890/- the petitioner has relied upon letter dated 8-7-2002 (Exh.D to the petition) written on behalf of the respondent to Shri Anibar Timblo of the petitioner with title "without prejudice" in which it is stated that the correct calculated interest works out to Rs. 7,23,890/-. On behalf of the petitioner reliance is also placed on letter dated 16-3-2003 (Exh. J) written by the respondent to the petitioner. The annexure to the said letter shows that a sum of Rs. 7,23,890/- was considered and after payment of TDS of Rs. 1,47,674/- what was shown outstanding was Rs. 5,76,216/-. The petitioner has also referred to form 16-A (Exh.Q1) produced on behalf of the respondent which shows that Income Tax of Rs. 73,837/- was paid on a sum of Rs. 7,23,890/- for the period from 1-4-2001 to 31-3-2002. In my view, none of the said three documents can be taken to support a contention that the respondent has expressly admitted its liability towards the petitioner in the sum of Rs. 7,23,890/-. Firstly, it must be observed that the letter dated 8-7-2002 was written with the title "without prejudice". "Without prejudice" means (1) that the cause or the matter has not been decided on merits, (2) fresh proceedings according to law were not barred. In other words, they mean that what is stated is not final and irrevocable. The Supreme Court in the case of Supt. Central Excise v. Pratap Rai referred to Black's Law Dictionary and to Wharton's Law Lexicon. In the former the said expression was defined as where an offer or admission is made "without prejudice" or a motion is denied or a bill in equity dismissed, without prejudice it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost except in so far as expressly considered or decided, and, in the latter, "the words import and understanding that if the negotiations failed, nothing that has passed shall be taken advantage of thereafter; so, if a defendant offers without prejudice to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment...". It is pointed out on behalf of the respondent that the said letter was written with a view to facilitate the negotiations which were going on at that stage. Apart from the said contention made on behalf of the respondent, in my view, the said letter dated 8-7-2006 (Exh.D) per se could not be considered to be an admission of the liability of Rs. 7,23,890/- for it was clearly written that it was written without prejudice. Likewise, the annexure to letter dated 16-3-2003 also cannot be taken to be an admission of liability of Rs. 7,23,890/- though this figure is indicated therein as an outstanding but what in reality has been shown as an outstanding is Rs. 5,76,216/-, after deducting TDS of Rs. 1,47,674/- but what is relevant to be noted is that at the foot of the said attachment to letter dated 16-3-2003 what is stated is that the net payable to the petitioner was Rs. 1,30,428/- and if at all, the said letter dated 16-3-2003 is indicative of any admission it is as regards the liability of the respondent in the sum of Rs. 1,30,428/-. The certificate in form 16-A (Exh.Q1) only shows that the said sum was due to the petitioner on which a sum of Rs. 73,837/- was paid as Income Tax but it cannot be read independently of the letter dated 16-3-2003 where the liability admitted is not of Rs. 7,23,890/- but only of Rs. 1,30,428/-. Even assuming for a moment that there is an admission of indebtedness in favour of the petitioner in the sum of Rs. 7,23,890/-, the respondent has been able to prima fade demonstrate that there is a liability of the petitioner towards the respondent of Rs. 8,78,075/-. The respondent has alleged that Ls. 8.650/- corresponding to Rs. 6,53,075/- was paid by the Managing Director of the respondent to Shri Auduth Timblo for and on behalf of the petitioner-Company to be adjusted in the financial dealings between both the Companies. In fact, there is no serious denial as regards the said receipt of money in foreign currency by or on behalf of the petitioner. In fact, Shri Auduth Timblo has not even cared to file an affidavit denying the said claim of the Managing Director of the respondent and, therefore, we could prima fade conclude that the said amount was paid on behalf of the respondent by its Managing Director to Shri Auduth Timblo on behalf of the petitioner. Some of the receipts produced show that the said payments were made in the name of "Chances". The only contention raised on behalf of the petitioner is that the said dues are not qua de petitioner but qua Shri Audhut Timblo and the respondent would be free to recover the same from him. I have no hesitation to conclude that the said payment of Ls. 8650 corresponding to Rs. 6,53,075/- were made by the respondent's Managing Director, as stated by him, to the petitioner's Director Shri Audhut Timblo for and on behalf of the petitioner to be adjusted towards the dues payable by the respondent and that being the position the respondent is certainly entitled to contend that the said sum of Rs. 6,53,075/- should be first adjusted from the dues payable to the petitioner. There is no dispute that a sum of Rs. 2,25,000/- was due and payable by the petitioner to the sister concern of the respondent at the rate of Rs. 50,000/- being the compensation payable for the period from 12-7-2002 to 15-11-2002. The respondent is certainly entitled to seek adjustment towards the sum payable to its sister concern. The letter dated 2 l-4-2003(Exh.F) written by the petitioner to the respondent shows that indeed a deduction of Rs. 3,55,500/- payable to the sister concern M/s. Britto Amusements Pvt. Ltd. was made by the petitioner and that was because the accounts between the petitioner, the respondent and the respondent's sister concern M/s. Britto Amusements Pvt. Ltd. were settled by adjustments. After all, the said Dr. William Britto was the Managing Director of the respondent as well as its sister concern namely the said M/s. Britto Amusements Pvt. Ltd. and if in the past the accounts were settled in that manner by making adjustments there is every reason for the respondent to insist that the amount due to its sister concern be adjusted first before the remainder liability towards the petitioner is paid by the respondent. In other words, as against the liability of Rs. 7,23,890/- the respondent has a bona fide dispute against the petitioner in the sum of Rs. 8,78,075/-.