JUBILANT ORGANOSYS LTD Vs. DCM SHRIRAM INDUSTRIES LTD

JUDGEMENT

(1.) The petitioner is a private limited company having its registered office in Gajraula District,U.P. It was incorporated with the name Vam Organic Chemical Ltd. However, w.e.f. 23.11.2001 the name of the petitioner company was changed to Jubilant Organosys Ltd. The respondent, which is a public limited company incorporated under the Indian Companies Act and having its registered office in New Delhi, approached the petitioner for supply of SBR Latex Encord 104, VP Latex Encord 106. Various purchase orders were placed on the petitioner company in this behalf. The petitioner effected the dispatches to the respondent's Kota Works according to the specifications regarding quality and quantity as per invoices raised. As per invoices, one of the terms mentioned was that 90 days credit would be given. The respondent was, therefore, required to make payment in respect of these invoices within 90 days of the supplies. However, the respondent failed to honour its commitment for the payment on due dates. As per records of the petitioner, respondent owes a sum of Rs.32,68,640/- as on 30.6.2002 and overdue interest charged thereon comes to Rs.11,91,326/-. The details of bills are given in Annexure A-3 and statement of account showing the aforesaid outstanding is annexed with the petition as Annexure-A-4. These are the averments made in the petition regarding the transactions in question.

(2.) It is also stated by the petitioner that despite various reminders, requests and meetings of the petitioner's representative, the respondent has not fulfilled its commitment. In the letter dated 31.10.2001 the respondent even accepted its liability to the extent of Rs.30,62,670/- and, therefore, the petitioner's stand is that at least to this extent the liability is acknowledged and even still the amount is not paid. The petitioner served a statutory notice dated 27.7.2002 under Sections 433 and 434 of the Act calling upon the respondent to clear the outstanding dues of the petitioner, which according to the petitioner were to the tune of Rs.44,59,966/- together with interest calculated at the rate of 24% p.a. Within 21 days of the receipt of this notice. In spite of service of that notice, respondent failed to discharge its liability and the petitioner, therefore, draws an inference that respondent is unable to pay its debts. In this back drop, present petition is filed seeking an order of winding up of the respondent company.

(3.) In the reply filed on behalf of the respondent, the respondent has not denied the supply of the material and also that the respondent had written letter dated 31.10.2001 accepting its liability to the extent of Rs.30,62,670/-. However, the case set up by the respondent is of counter-claim and this counter-claim is based on an Award passed by an Arbitrator awarding a sum of Rs.38,52,956/- along with interest at the rate of 18% p.a.