SIKA QUALCRETE LTD Vs. ORISSA BRIDGE CONSTRUCTION

JUDGEMENT

(1.) THIS is an application filed under Sections 433, 434 and 439 of the Companies Act, 1956 by the petitioner for winding up of the Orissa Bridge Construction Corporation Ltd., (for short, 'the Company').

(2.) THE case of the petitioner is that the petitioner and the Company entered into an agreement on 24th of December, 1993 whereunder the petitioner agreed to execute the job of 'Rehabilitation' work on H.L. Bridge over river TEL on Bolangir -Bhawanipatna Road near Belgaon on S.H. 2' in accordance with the specification and the terms and conditions contained in the price bid of the petitioner in his letter dated 10.4.1993, detailed tender call notice of the Company with subsequent modification as per discussions held with the representatives of the petitioner and the letters dated 8.5.1993, 27.8.1993, 20.9.1993 and 24.9.1993 of the petitioner. Pursuant to the said agreement, the petitioner started the work with a view to finish the same by 15.5.1994 and the petitioner informed the Company that work on two spans was taken up simultaneously but under the direction of the Deputy Project Manager of the Company in his Memo No. 340 dated 9.3.1994 the work was stopped. The General Manager of the Company then issued letter No. 931 dated 3.5.1994 to the petitioner to resume the work in the third span from Belgaon side without delay pending load test for the second span of the bridge but the payment was not released. The petitioner therefore served a notice dated 14.7.1995 on the Company for making the payment to the petitioner. A final bill was prepared by the opposite parties for the work done by the petitioner and was kept for being passed for payment and a memo dated 24.8.1995 was issued by the Company to the petitioner raising some points in its letter dated 7th of October, 1995 but no payment was made by the Company towards the final bill. The petitioner has thus filed this petition for winding up of the Company under the provisions of the Companies Act for non -payment of an amount of Rs. 3,07,719.94 paise.

(3.) AT the hearing, Mr. P. C. Misra, Learned Counsel for the petitioner, submitted that it is a fit case in which the Court should pass an order for winding up of the Company on the ground that the Company is unable to pay its debt to the petitioner. Mr. P. K. Ray Learned Counsel for the Company, on the other hand, submitted that the Company bona fide disputes its liability for the debt claimed by the petitioner and in any case, no statutory notice as provided in Section 434 of the Companies Act, 1956 has been served at the registered office of the Company and this is not at all a case where the Court should pass an order for winding up of the Company.