BETUL OIL LIMITED Vs. NOVA TRADING PRIVATE LIMITED

JUDGEMENT

(1.) This petition under Section 434 of the Companies Act has been filed for winding up of respondent company with the plea that petitioner is trading in high quality edible oils, soyabean meal and other agricultural products and it had entered into a contract with respondent company being contract No. 5 on 4th August 2011 for supply of 10,800 metric tonnes of Indian Soyabean Meal Extraction. The delivery period in the contract was 57 days from the date of the contract. petitioner had paid Rs. 10 crores to the respondent as 50% advance of the total approximate purchase price of Rs. 20,19,60,000/- through bank but the Soya Meal in pursuance to the contract was not supplied which was supposed to be delivered till 30th September 2011. The petitioner had therefore, sent demand notice dated 8/6/2013 which was also the statutory notice under Section 433 and 434 of Companies Act but inspite of the service of notice the amount was not repaid, therefore, the present petition was filed.

(2.) A reply has been filed by respondent denying the plea of petitioner and submitting that no such contract was executed between the parties on 4th August, 2011, on the contrary on 2nd August 2011 contract No. BOL/2011/08/08 was executed between the parties for supply of 1500 metric tonne of Guar Gum at the price equal to the closing price on 20th March 2012 and as per the agreed term, the petitioner buyer company had to pay 90% of the amount in advance @ Rs. 9,10,970/- per metric tonne which was the price on the settlement date against which an advance amount of Rs. 10 crores was paid by the petitioner company but remaining advance amount was not paid by petitioner company on account of which the respondent company had suffered huge losses. A further plea has been raised that in terms of agreement only the Mumbai Court had the jurisdiction and matter was required to be settled through arbitration and that respondent company had incurred the losses to the tune of Rs. 38.98 crores and that legal notice sent by petitioner was duly responded by respondent by sending reply dated 14th August, 2013. The application and additional reply to rejoinder have been fled by parties reiterating their respective stand.

(3.) Learned counsel for petitioner submits that respondent company is liable to be wound up since the payment to the tune of Rs. 10 crores is not in dispute and the said payment was in pursuance to the contract dated 4th August, 2011. He submits that it is a clear case of inability to pay the debts. He has also submitted that the agreement dated 2/9/11 on which the respondent is placing reliance upon is a fabricated document.