TWINKAL EXPORTS Vs. TARTANS INFOMARK LIMITED

JUDGEMENT

(1.) The petitioner Filed a petition under Section 433(e), 434 and 439 of the Companies Act, 1956 against the respondent. The petitioner vide its letter dated 11.4.1997 has offered certain quotations for costume jewellery items to the respondent company alongwith its terms and conditions. The respondent company placed an order dated 15.4.1997 for the supply of various items of costume jewellery, which was duly accepted by the petitioner. According to the letter dated 15.4.1997, some specified jewellery items were to be supplied to the petitioner within 90 days, i.e., on or before 19.7.1997. The respondent was to be paid a commission ofUS$ 58,000.-

(2.) It is the case of the petitioner that the respondent was paid the commission amount. It is also mentioned in the petition that the petitioner sought an extension of time for supplying the goods vide letter dated 4.7.1997 and the respondent company had agreed to extend the time up to 6.8.1997 and informed the respondent on telephone. Thereafter, the petitioner was ready with the consignment for dispatch within a week after seeking an extension from the respondent. The petitioner thereafter requested the respondent to arrange for an inspection of the same by Mr. Aamir Hatim Nakhoda as per the terms of the letter of credit. The respondent had represented to the petitioner that the pre-shipment inspection shall be done by Mr. Naresh Baluni, in his capacity as the agent and it was further stated that Mr. Naresh Baluni shall also organize for the Pre-shipment Inspection Certificate. As such on 20.7.1997, an inspection was carried out by the said Mr. Naresh Baluni, who accepted that the goods were in order and perfect condition and had also signed all the cartons containing the consignment.

(3.) According to the petitioner, the respondent company assured the petitioner that they shall arrange for the fresh letter of credit in the petitioner's favour by 13.8.1997 but they failed and neglected to do the same. As such the petitioner once again vide its letter dated 8.8.1997 requested both the respondent and the buyer to arrange for the letter of credit. Again a similar request was sent on 19.8.1997. On 20.8.1997, the petitioner served a notice, calling upon the respondent company to arrange for the letter of credit within seven days and make the payment.