ASEA BROWN BOVERI LIMITED Vs. BOVING FOURESS LIMITED

JUDGEMENT

(1.) THIS appeal is filed against the order of the learned single Judges dated 16. 1. 2003 passed in Company Petition No 111/2001 wherein the learned Single Judge has dismissed the petition reserving liberty to the petitioner therein to approach the competent Civil Court or to invoke the arbitration clause for recovery of the amount due.

(2.) IT is stated that the appellant is a company incorporated under the provisions of Companies Act, 1956 and is a manufacturer and dealer of electrical products, motors, switchgears, control panels, etc. The appellant company under various invoices raised from time to time, supplied the materials to the respondent company. The materials delivered by the appellant company were acknowledged by the respondent company and the total balance outstanding due on various invoices was Rs. 25, 09, 849-84. The respondent company though initially raised some dispute, issued a cheque of Rs 5,00,000. 00 dated 31/12/2000 drawn on State Bank of India, industrial Finance Branch, Bangalore. The same was dishonoured on 15/2/2001 with an endorsement of insufficiency of funds in the account of respondent. Meanwhile, the respondent threatened to encash the bank guarantees (performance guarantees) issued by the appellant to the respondent as per letter dated 28/6/2001. It is also stated that the appellant filed O. S. No. 15867/2001 before the city Civil Court and obtained an order of temporary injunction restraining the respondent from encashing the bank guarantees. Thereafter a legal notice was issued on 20/02/2001 which was replied by the respondent on 23. 2. 2001 raising certain untenable grounds for non-payment inspite of the admission made by earlier letter dated 24/8/2000. The appellant filed a Company Petition No 111/2001 under section 433 (e) and (f) of the Companies Act, 1956. The learned single Judge considering the objections dismissed the company petition as stated. Aggrieved the appellant company has filed this o. S. A.

(3.) THE learned Counsel for the appellant submits that the learned single Judge has erred in not invoking Section 433 (e) and (f) of the Companies Act when admittedly the amount due was not paid by the respondent. He relied on a decision of the Supreme Court in m/s. MADHUSUDAN GORDHANDAS and CO. vs MADHU WOLLEN industries PRIVATE LIMITED1, He also relied on a decision of this Court in the case of DIVYA EXPORT ENTERPRISES vs producin PRIVATE LIMITED2, and also that of Calcutta High Court in the case of DURGAPUR PROJECT LIMITED3. The learned counsel submits that the order of winding up should have been issued.