SHRISTAB PRIVATE LIMITED Vs. REASELACK POLYMERS PVT LIMITED

JUDGEMENT

(1.) M/s. Shristab Private Limited, a company incorporated under the Companies Act, 1956, having its office at Kota in Rajasthan, and represented by its Authorized Representative has filed this Company Petition under Sections 433(e) and (f) and 439 of the Companies Act, 1956 r/w Rule 95 of the Companies (Court) Rules, 1959, praying for winding up of the respondent, namely M/s. Reaselack Polymers Private Limited, on the ground that the respondent is unable to pay its debts. The petitioner-company is engaged in the business of manufacture and sale of P.V.C. Stabilizers, Metallic Stearates, Olearates, Zinc Oxide "W-S", Stearic Acid etc.. It is the case of the petitioner that the respondent-company which is engaged in the manufacture of plastic goods, including containers, jars, bottles, polymers, chemicals, multi-player packaging products made of polythene, HDFE, LDFE, DP, PS and other allied products, approached the petitioner in the year 1998 with a request to supply chemicals. Upon discussions, an understanding was reached between the petitioner and the respondent whereby it was agreed that the petitioner would supply goods to respondent against "C" forms as per the Purchase Orders to be placed by the respondent from time to time and make payment on account basis. During course of time, a running account was developed between the parties, whereby the outstanding balance of the respondent of the previous year were carried forward to the next financial year. It is the case of the petitioner that during 1998-99, respondent placed orders for supply of chemicals valued at Rs.16,20,198/- which the petitioner promptly supplied. The respondent having received the supplies, paid an amount of Rs.2,89,465/-, leaving a balance of Rs.13,30,733/-, which was carried forward to the next financial year i.e. 1999-2000. During 1999, respondent again placed Purchase Orders for supply of chemicals worth Rs.3,282/-, and paid an amount of Rs.5,26,774/-. Upon adjustment of the said amount, the outstanding dues of the respondent with interest thereon, was reduced to Rs.10,35,905/-, which was carried forward to the next financial year. The petitioner submits that the respondent again placed Purchase Orders for supply of chemicals, and made part payment of Rs.61,666/- by way of cheque No. 700742, dated 28-2-2002, which was adjusted towards the dues of the respondent. As on 31-3-2002, the outstanding balance of the respondent stood at Rs. 15,92,807/- (principal Rs.10,97,571/- and interest thereon at Rs.4,95,236/-).

(2.) The petitioner states that the respondent acknowledged the liability vide their letter dated 19-2-1999 wherein it pleaded financial crunch and pleaded some time for making payment. That in spite of raising several debit notes and repeated requests to the respondent, the respondent failed to make the payment. Thereafter, when the petitioner addressed letter dated 20-5-2002 to the respondent to confirm the balance, else it would be presumed that the amount demanded is correct, the respondent in spite of having received the said letter, failed to reply. Thereupon, the petitioner got issued statutory legal notice dated 6-7-2002 under Sections 433(e) and 434 of the Companies Act, 1956 (for short 'the Companies Act') calling upon the respondent to clear the outstanding, but the same was returned unserved with a postal endorsement "not known, return to sender". Thereafter, the petitioner upon verifying the record with the Registrar of Companies, got issued fresh legal notice dated 20-8-2002, which was sent to the present and previous registered offices and its offices at Nagpur and also to its Directors. Except the notices sent to the offices at Nagpur and some of the Directors of the respondent, all other notices returned unserved. However, the respondent failed to reply to the said notice. Hence, this Company Petition by the petitioner for winding up of the respondent for realization of its dues.

(3.) The respondent filed counter attacking the very maintainability of the Company Petition stating that the petitioner does not come within the meaning of the term "creditor" as appearing in Sections 433(e) & (f), 434(1)(a) and 439 of the Companies Act, and in any event, it is stated that the claim made by the petitioner is barred by limitation, and is therefore, unenforceable. Inasmuch as the invoices under which the petitioner supplied material to the respondent contains a clause to the effect that all disputes arising under the bills will be settled in the Courts at Kota in Rajasthan, the Courts in Andhra Pradesh, including this Court has no jurisdiction to entertain any dispute in respect of the bills, much less the Company Petition for winding up of the respondent. It is further stated that the petitioner has waived off his right to claim the alleged debt, and having regard to the fact that the petitioner had accepted for resolution of the disputes arising under the bills in the Courts at Kota in Rajasthan, he is estopped from invoking the jurisdiction of the Courts in Andhra Pradesh, including this Court.