PAHARPUR 3P Vs. DALMIA CONSUMER CARE PRIVATE LIMITED

JUDGEMENT

(1.) THE petitioner seeks the winding up of the respondent company by invoking sections 433 (e), 434 and 439 of the Companies Act, 1956 (hereinafter called the "act") on the ground that the respondent is indebted to the petitioner to the tune of Rs 57,42,572. 41p. besides interest, which which the respondent company is unable to pay despite service of a statutory notice.

(2.) AS per the averments contained in the petition, the petitioner M/s Paharpur 3p (hereinafter called the "petitioner"), is a division of M/s Paharpur Cooling towers Ltd. and is in the business of manufacturing , marketing and exporting flexible Packaging laminates in Roll and Pouch form. The respondent company, M/s dalmia Consumer Care Pvt. Ltd. (hereinafter called the "company"), placed various purchase orders from time to time on the petitioner for supply of flexible laminates and pouches , inter-alia, for its FMCG product "zing" and "chabaaza". The petitioner supplied to the Company Flexible laminates and pouches as per the terms of the purchase orders to the complete satisfaction of the company and raised the invoices amounting to Rs. 1,91,51,367. 55/ -. Out of the said amount, an amount of Rs. 57,42,572. 41/- is outstanding, due and payable by the company. It is further averred that the petitioner sent numerous reminders and made personal visits to the office of the company but to no avail. The Company vide a "balance Confirmation Certificate"" dated 23. 01. 2006 (Annnexure P-1 to the petition), admitted Rs. 56,97,300/- as outstanding due and payable to the petitioner as on 31. 12. 2005. The petitioner further states that a Statutory notice dated 15. 02. 2006 issued in compliance of sections 433/434 of the Act was served on the company and was duly received at the registered office of the company on 17. 02. 2006, but the company has neither replied to the said notice nor settled the aforesaid outstanding amount, due and payable to the petitioner.

(3.) IN the reply filed by the respondent , it is averred that the petitioner represented itself to be the best supplier for packaging materials, and based upon such representations the respondent had agreed to purchase the materials. Between September 2004 and December 2004, various purchase orders were placed upon the petitioner apart from one order which was placed in May 2005. The reason for the short period, during which business transactions took place between the parties, is stated to be the inferior and defective quality of the packaging materials supplied by the petitioner, which was not fit for the intended use. It is further averred that the products of the respondent packed in inferior quality packaging materials supplied by the petitioner were damaged in various ways making the products unfit for human consumption and its intended use. Due to such results, the product of the company was not accepted in the market and the respondent company started getting complaints from its customers and dealers and the respondent was forced to stop taking regular supplies of the packaging materials from the petitioner. The solitary exception was the supply of packaging material in May, 2005 for a minuscule amount of Rs. 4. 24 Lacs, that too, after a lot of persuasion and assurances as to the quality of material given by the petitioner, but even then the packaging material was of inferior quality and suffered from all sorts of shortcomings which were noticed in earlier supplies. No order was placed upon the petitioner subsequent to May, 2005.