OM PACKAGES Vs. AGRO DUTCH FOODS LTD.

JUDGEMENT

(1.) OM Packages, a partnership concern, has filed this petition under Sections 433, 434 read with Section 439 of the Companies Act, 1956 ('the Act'), with a prayer that Agro Dutch Foods Limited, a company duly incorporated under the provisions of the Companies Act, be ordered to be wound up on the ground that it has failed to pay the debts in spite of demand.

(2.) ACCORDING to the petitioner, the petitioner -firm is engaged in manufacturing of paper cartons and supplies the same against orders. After some negotiations and correspondence between the parties to the present case, the petitioner agreed to supply cartons of specifications asked for (5,000 cartons) at the rate of Rs. 18 per carton, as confirmed in the letter dated 16 -2 -1995, copy of which is annexed as annexure P -3 to the petition. In furtherance of the said letter, the petitioner manufactured 5,146 cartons and delivered the same to the respondent -company. Out of these cartons, 1,636 were accepted and 3,510 were rejected and sent back to the petitioner. Like this, various orders were placed. The orders placed and details of supply made by the petitioner are stated in the petition as under: <FRM>JUDGEMENT_161_LAWS(P&H)11_1998.htm</FRM>

(5.) FROM the above narrated more or less undisputed facts, it is clear that there was an agreement between the parties to supply the goods. The rate was fixed and also that the material to some extent was rejected and there was a dispute of payment between the parties. Certainly a sum of Rs. 50,000 has admittedly been paid by the respondent -company to the petitioner. The present winding petition raises serious questions of dispute which cannot be settled without recording evidence in regard to the matters in controversy. The nature of serious and complex dispute between the parties is even clear from the fact that the supplies were admittedly rejected by the respondent -company but it is to the extent of material which was rejected. To determine the exact amount of rejected goods and further whether the petitioner failed to lift the materials in spite of request, are the basic and serious questions of dispute. From the averments made in paragraph No. 5 of the petition, it is clear that all alleged supplies were made prior to 15 -7 -1995, and in the letter dated 18 -7 -1995, the petitioner had admitted to the rejection and lifting back of the material. The relevant part of the said letter reads as under :