BROTHERS GAS AGENCY Vs. HEMKUNT GASES P. LTD.

JUDGEMENT

(1.) THE petition has been filed under Section 433(c) and (e) read with Sections 434 and 439 of the Companies Act, 1956, for winding up of the respondent -company on the ground that the company has been unable to pay the admitted debt due to the petitioner and even otherwise it shall only be just and equitable to wind up the company for having suspended its work for more than one year. The claim is made on the basis that the respondent -company had appointed the petitioner as a dealer for the distribution of liquified petroleum gas (LPG) to customers who had been given connections for domestic use, produced by the respondent -company.

(2.) THE terms of appointment of the dealership included, inter alia, the job of canvassing for connections with customers and the delivery of equipment against the security to be deposited by the consumers. Against each new gas connection, the consumer was required to deposit a sum of Rs. 1,800 (Rs. 1,000 as security for cylinder and regulator and Rs. 800 as security for rentals) in favour of the respondent -company, which was received by the dealer and passed on to the company. On surrender of the connection, the company was required to refund the amount to the consumer through the dealer as the collections were themselves made only through the dealer. As per the averments in the petition, the petitioner had collected the security deposit against 510 connections and passed on the same to the respondent -company from time to time through demand drafts drawn in the name of the company as also in cash. The petition sets out all the details of the various connections that were made between the periods from October 4, 1994 to March 16, 1996, relating to the final net connection and the amounts collected towards the cylinder, regulator and the rental charges totalling a sum of Rs. 9,30,795. The document appointing the petitioner -company as a dealer and the details of the supply and the security deposits remitted by the petitioner to the respondent -company are evidenced through annexures P1 and P3 to P27, respectively. The balance -sheet evidencing rental and service charges are evidenced through annexure P28.

(3.) A notice dated December 30, 1996 (annexure P31) making a demand on the respondent, was issued to which the respondent replied through a communication dated January 13, 1997. The respondent by the reply denied that the petitioner was ever appointed as a dealer and that the petitioner had been appointed as a dealer only of Asian Gas. The petitioner would stoutly deny the defence taken by the respondent and would state that Asian Gas was merely a brand name for the gas produced by the respondent -company M/s. Hemkunt Gases P. Ltd. A rejoinder was issued by the petitioner setting forth the alleged duplicity of the respondent in denying the privity of contract between the petitioner and the respondent. The petitioner applies for winding up stating that the failure of the respondent to pay the amount due to the petitioner created a statutory presumption against the respondent for its inability to pay and that further the respondent -company having completely ceased its operation and discontinued the supply service was also liable to be wound up on just and equitable reasons.