A.K.Banerji, J. - (1.) By means of the above-noted petition filed under sections 433, 434 and 439 of the Companies Act, 1956 (the Act in short), the petitioner, ITC Agro Tech Limited (petitioner in short), have sought the winding up of the company, Asha Agro Industries Limited, having its registered office at Sarvodaya Nagar, Kanpur (respondent-company in short) on the ground that the said company is indebted to the petitioner and is unable to pay its debts.
(2.) The petitioner's case is that the respondent-company entered into an agreement dated 2.4.1991 with petitioner for supply of refined edible oils manufactured by the respondent to the petitioner. Pursuant to the provisions of the said agreement, the petitioner advanced money from tine to time to the respondent for financing the entire purchase of crude oil, packing materials as well as refining and delivery charges. As on 20.6.1992, there was a credit balance of Rs. 1,15,92,052.86 paise in favour of the petitioner. Dispute has arisen between the parties over material balancing and account reconciliation and the respondent-company having failed to make the payment, the petitioner filed the winding up petition No. 10 of 1993 in this court. Subsequently, however, the parties entered into a settlement. As a result thereof, the petition was withdrawn on 22.12.1993. After the reconciliation of the accounts an agreement, dated 26.7.1995 was entered into between the petitioner and the respondent-company by which the said respondent agreed to pay an amount of Rs. 65 lakhs, in 48 monthly instalments details of which were specified in Annexure-1 to the said agreement. The petitioner has submitted that the respondent only paid Rs. 5 lakhs, the last payment being of 2 March, 1996 and thereafter, [it] did not make any payment and despite repeated reminders, deliberately failed and neglected to pay. The petitioner was constrained to serve a statutory notice dated 16 October, 1996, demanding a sum of Rs. 60 lakhs along with interest @ 18% per annum. Despite the notice being duly served on 20 October, 1996, the respondent did not make payment but vide their letter dated 6 November, 1996, admitted that the payments got held-up due to reasons beyond their control. However, at the same time, they raised various pleas denying that the amount demanded was payable by the said date and also challenging the right of the petitioner to file a winding-up petition. The petitioner, therefore, filed the above noted company petition before this court.
(3.) On 5.8.1997, this court issued notice to the respondent to show cause why the petition may not be admitted and advertised. Appearance was put [in] by the respondent-company and a counter affidavit was also filed in which though not denying categorically that the petitioner had defaulted in payment of the instalments, the respondent relied upon clause 5 of the agreement, dated 26.7.95 and asserted that the remedy of the petitioner lay by approaching the civil courts and not by filing the present winding-up petition which was barred as per the agreement between the parties. A rejoinder affidavit has been filed on behalf of the petitioner denying the allegations made in the counter affidavit.;