FIBEX INC Vs. A B K PUBLICATIONS LTD

JUDGEMENT

(1.) THIS is an application under Sections 433 (e), 434 (1) (a) and 439 (b) of the Indian Companies Act, 1956 (for short, "the Act"), for winding up the respondent-company.

(2.) THE admitted facts of the case are that on June 5, 1996, the respondent-company had placed an order for purchasing 2,000 mts. of newsprint. On June 11, 1996, the respondent-company had requested the petitioner to arrange supply of the goods on credit. The newsprint ordered to be purchased was to be supplied in three consignments namely 0094a for 750 mts. , 0094b for 750 mts. and 0094c for 500 mts. The consignment 0094a for 750 mts. of newsprint was settled at US$ 530 per mts. amounting to US$ 397500 equivalent to Rs. 1. 45 crores. Sanghi Polyesters had executed a deed of guarantee in favour of the petitioner-company. The ship carrying the consignment reached the Mumbai port on August 15, 1996. The consignment was delivered to the respondent-company from August 16, 1996, to August 26, 1996. The amount of Rs. 1. 45 crores was agreed to be paid by the respondent-company on or before August 15. 1996, But after negotiations, the petitioner-company had agreed for payment upto September 15, 1996. On October 8, 1996, the respondent-company had paid US$ 128451. 86 towards the price of the goods and US$ 2068. 93 towards interest and bank charges. The respondent-company had consumed the newsprint supplied to it weighing 750 mts. The consignments 0094b for 750 mts. and 0094c for 500 mts. had arrived at the Mumbai port but the petitioner-company had sold the same to other persons. On October 21, 1996, the petitioner-company demanded the balance amount of goods sold on credit and finally on November 19, 1996, sent a notice under Section 434 (1) (a) of the Act for the payment. On December 15, 1996, the respondent-company had replied denying the claim of the petitioner-company. It is also an admitted fact that the petitioner-company has instituted summary Suit No. 980 of 1997 against the respondent-company and its guarantor Sanghi Polyesters Limited in the civil court of Ahmedahad, for the recovery of the balance amount of the goods supplied on credit, for interest and damages for breach of the contracts 0094b and 0094c amounting to Rs. 1,04,23,419 and it is pending there.

(3.) THE case of the petitioner-company, in brief, is that the agreement 0094b for supply of 750 mts. and the agreement 0094c for supply of 750 mts. of newsprint were separate contracts. The respondent-company has failed and neglected to pay the balance price of the goods sold on credit. The respondent-company has lost its substratum and, therefore, it is liable to be wound up. It has also been pleaded that the petitioner-company had to sell 1,250 mts. of newsprint at the rate of US$ 514 per mts. which was a lower price as compared to the rate at which the respondent-company had agreed to buy the same from the petitioner-company. Therefore, it had to suffer substantial loss due to breach of the contract. The petitioner-company had to sell US$ 1,250 mts. of newsprint to others because of the failure of the respondent-company to make payment for the purchase of 750 mts. of newsprint covered under the agreement 0094a.