AJIT EXPORTS Vs. MBS IMPEX PRIVATE LIMITED

JUDGEMENT

(1.) This company petition is filed under Sections 433(e) and 439(1)(b) read with Section 434(1)(a) of the Companies Act, 1956 (for short 'the Act'), for ordering winding up of the respondent company for non-payment of debt due to the petitioner.

(2.) The petitioner has pleaded that it is a partnership firm and that the respondent is a private limited company with authorized capital of Rs.25,00,00,000/- divided into 2,50,00,000 equity shares of Rs.10/- each and its issued, subscribed and paid up capital is Rs.9,65,00,000/- divided into 96,50,000 equity shares of Rs.10/- each. That the respondent is mainly engaged in the business of manufacture and sale of gold jewellery, that it has approached the petitioner and represented that it had a confirmed export order for manufacture and supply of jewellery to

(3.) M/s. Samrah Gold Factory, L.L.C., P.O. Sharjah, UAE, and that based on the said representation of the respondent, they have entered into a Memorandum of Understanding (for short 'MOU') on 25.08.2008. The petitioner further pleaded that under the said MOU, it was agreed that the respondent is responsible for realization of the proceeds from the importer in Sharjah, UAE, for gold jewellery exported, within the timeframe allowed by the Reserve bank of India, that the petitioner shall avail all the benefits of Noida Special Economic Zone (NSEZ), where the manufacturing unit of the petitioner is located, and that the respondent shall pay the due amount to the petitioner firm in Indian rupees and is responsible for realization within the timeframe allowed by Reserve Bank of India. The petitioner also pleaded that in terms of the said MOU and as per the instructions received from the respondent, it has manufactured and exported gold jewellery to M/s. Samrah Gold Factory, through Indian Airlines. The petitioner specifically pleaded that it has manufactured the gold jewellery and exported on behalf of the respondent from out of its own raw material (raw gold). It was further pleaded that in accordance with para 9.62 of the Foreign Trade Policy 2004-2009, the invoices raised in the name of the respondent were sent by the petitioner along with other shipping documents to the consignee and that receipt of the goods was duly acknowledged by the importer. That in terms of the agreement between the parties, the petitioner raised 11 debit notes for a total sum of Rs.70,97,56,084/-, that on 05.09.2008, the respondent paid a sum of Rs.2,00,00,000/- as part payment of the amount of Rs.70,97,56,084/-, that the respondent was indebted to the petitioner in a sum of Rs.68,97,56,084/- as on 26.09.2008 and it is liable to pay interest at 24% per annum from 26.09.2008 till the date of actual payment. The petitioner further pleaded that in partial discharge of its liability, the respondent has issued two cheques, one for Rs.1,00,00,000/-and another for Rs.10,00,00,000/-, that when the same were presented to its bankers, they were returned as dishonoured and that it has initiated proceedings under Section 138 of the Negotiable Instruments Act against the respondent for dishonour of the cheques. That as the respondent failed to honour its commitment relating to payment of due amounts, the petitioner has sent a statutory notice on 18.02.2011 under Section 434(1)(a) of the Act, calling upon the respondent to make payment in terms of the MOU within the statutory period of three weeks and that the said notice was returned to the petitioner with remarks 'not claimed, return to sender'. That the petitioner firm, having come to know about the change of registered office of the respondent, again issued another statutory notice through its counsel on 29.08.2011 and that as no reply was received by it to the said notice, it has filed the present company petition, seeking an order to wind up the respondent company for its inability to pay the debt of Rs.117,25,85,391/-.