PRIYARAJ ELECTRONICS LTD Vs. MOTOROLA INDIA P LTD

JUDGEMENT

(1.) This petition has been filed under Sections 433, 434 and 439 of the Companies Act, on behalf of the petitioner for winding-up respondent-company i.e., Motorola India Pvt. Ltd.

(2.) The basis of the petition is the alleged admitted liability of the respondent-company to the petitioner in a sum of Rs. 1,12,51,871 for various goods sold and services rendered by the petitioner to the respondent-company under an Infrastructure Supply and Services Agreement dated 7-1-2002 ('the agreement'). The agreement came to be executed for implementing the respondent-company's GSM project at BSNL and non-BSNL sites in the States of Andhra Pradesh/Kerala.

(3.) The averments in the petition are that the petitioner had to complete the work entrusted to it by the respondent under the terms of the aforesaid agreement by 27-7-2002. The agreement spells out the terms of payment and the admitted case is that all the payments have been made except 20 per cent of the price of the purchase order that is alleged to have been withheld by the respondent, notwithstanding the fact that it has received the last payment due from BSNL. The petitioner claims the payment due to it to be an admitted claim and that the respondent-company has made provision for Rs. 86,22,077 as due and payable to the petitioner-company in its audited statements and has also referred to the same in a company petition filed before this Court in C.P. No. 7 of 2006 seeking for approval of a Scheme of Amalgamation of itself and its group/associated companies. The statutory notice demanding the payment issued on 22-12-2005 (Annexure P-5) to the respondent-company was responded by stating that it had itself not received the full payment from BSNL under the agreement and so long as the last due payment from BSNL has not been received, it was entitled to withhold at least 20 per cent of the price of the services referred to in the purchase order. The petitioner claims that the contingency of non-receipt of the last payment from BSNL has been taken up by the respondent for the first time only in the reply and the respondent-company has actually, without any valid or bona fide reason, failed and neglected to make the payment without sending the amount to the petitioner. In its assessment, the respondent-company has been clearly "unable to pay its debt" and hence it is liable to be wound up.