HORST KURVES GMBH Vs. ESSAR OILS LIMITED

JUDGEMENT

(1.) Admit. With the consent of the learned counsel for the parties, the appeal has been finally heard over a period of two days and is being disposed by this judgment.

(2.) This appeal arises from the order dated 24-4-2001 passed by the learned Company Judge in Company Application No.127 of 2001 in Company Petition No.265 of 2000 by which the learned Judge rejected the application filed by the appellant-petitioning creditor for a direction to the respondent-company to give inspection of certain documents and for production thereof.

(3.) The main company petition i.e. Company Petition No.265 of 2000 has been filed by the appellant for winding up of the respondent -company - Essar Oils Ltd. on the ground that the amounts due and payable by the respondent-company to the appellant have not been paid in spite of the deed of guarantee given by the respondent-company in favour of the appellant. It is the case of the appellant that in accordance with the contract dated 25-6-1997 entered into between the respondent and ABB Lummus Globa B.V. (hereinafter referred to as `the LGV'), (a company incorporated under the laws of The Netherlands), the LGV agreed to supply to the respondent non-Indian sourced equipment and materials required by the respondent-company for the Crude Refinery set up by the said respondent-company at Vadinar in Gujarat. In order to perform the said obligations, LGV entered into a sub-contract dated 16-4-1999 with certain requisitions with the appellant for procurement of valves, fittings, flanges etc. (hereinafter referred to as `the goods'). It is further the case of the appellant that since the respondent-company was in financial difficulties, in view of the request made by the respondent-company and LGV in turn to the appellant to accommodate the respondent-company, the appellant agreed to extend credit facility for a period of 90 days from the date of shipment of goods to an amount of DM 18 Million approximately, equivalent to US$ 10 Million subject to the respondent-company giving an irrevocable and unconditional corporate guarantee to the appellant. Accordingly, vide a Deed of Undertaking dated 21-4-1999 between the respondent-company and the appellant, the respondent-company unconditionally and irrevocably agreed that in the event of any failure on the part of the respondent-company to make payment to LGV as due along with the interest, within the said period of 90 days from the date of shipment, the respondent-company will on simple demand from the appellant, pay the appellant the value of the said goods under the sub-contract upto a sum not exceeding US$ 10 Million along with applicable interest without any demur, reservation, recourse or protest. It is further the case of the appellant that in spite of repeated requests made by the appellant and LGV, the respondent-company failed and neglected to pay the LGV, the sum aggregating to US $ 7,006,332 in respect of the sub-contract aforesaid within the prescribed period and, therefore, the appellant called upon the respondent-company to make the said payment with interest but the respondent-company kept on avoiding and neglecting to make the said payment to the appellant. Finally, the appellant sent a letter dated 30-6-2000 to the respondent-company reiterating its demand. However, by a fax message dated 7-7-2000, the respondent-company stated, inter-alia, as under: