BHAGAT INDUSTRIES Vs. SUPER TEC MACHINERIES PVT LTD

JUDGEMENT

(1.) This is a petition under sections 433, 434 read with section 439 of the Companies Act (for short, the Act) filed by the petitioner company seeking an order at winding up against Super Tec Machineries (P) Ltd. , hereinafter called the respondent-company.

(2.) It has been asserted that the petitioner-company deposited a sum of Rs. 40,000 through demand draft, dated 21. 8. 1995 payable at State Bank of Patiala, Faridabad, and another sum of Rs. 35. 000 vide demand draft, dated 1. 12. 1995 payable at Punjab and Sindh Bank, Faridabad. The proceeds of these demand drafts have been credited in the account of the respondent-company. The respondent-company wanted this amount for their business and had agreed to pay interest @ 18% per annum as interest on the principal amount. It was a commercial transaction. Despite repeated requests, the respondent company failed to pay the amount. A notice was sent to the respondent company by registered post. Since the respondent company failed to pay the amount, the present petition for winding up of respondent company was filed.

(3.) The petition was contested. It was asserted that this is not an admitted debt payable to the petitioner company. The question of inability to pay would arise once the debt is crystallised or admitted. It was even the plea of the respondent company that the petition has not been filed in accordance with the provisions of the Act. As per respondent company, it is manufacturing machines for agro-waste fuel briquetting. It was doing business till the year 1998. Due to financial constraints, the respondent-company was shut down for a period of about 8-10 months. Subsequently, the respondent-company had received orders to the tune of Rs. 1. 50 crores and had started refunctioning. Statutory notice was not served as regards the amount claimed. The respondent-company asserted that the petitioner-company had given an order for the supply of a briquetting plant for a sum of Rs. 44. 00 lakhs. Accordingly, a quotation was sent by the respondent-company to the petitioner company for setting up the said plants. For the said purpose, the petitioner-company had given a token advance of Rs. 40,000 followed by another advance of Rs. 35,000 to be paid to the financial institution of the World Bank which was to finance the machinery of the petitioner-company. The said machinery had to be bought from the respondent-company. It is denied, therefore, that the claim of the petitioner-company as stated was correct. The respondent company went on to urge that the machinery which was ordered by the petitioner company was lying ready at the factory premises of the respondent company. The value of the machinery is about Rs. 44 lakhs. It is to the knowledge of the respondent company that the loan which was to be sanctioned by the financial institute of the World Bank has since been cancelled and the petitioner company is not in a position to take back the machinery. Hence, the petitioner company has filed the present application for winding up.