Sudhir Narain, J. - (1.) The petitioner, Banaras Beads Ltd., filed this petition for winding up Shrishti Carriers Private Limited having its registered office at 24/56 Birhana Road, Kanpur (hereinafter referred to as "the company").
(2.) The version of the petitioner is that it entered into an agreement on May 17, 1995, with the respondent-company whereby it agreed to make available the required funds to the company for subscription to the rights issue of 12 per cent. fully convertible debentures of Shrishti Videocorp Ltd. and the company had agreed to repay the petitioners the fund so arranged by it within 180 days. As the nature of the agreement is relevant it is quoted below : "This agreement made this the seventeenth day of May in the year one thousand nine hundred ninety-five between Shrishti Carriers Pvt. Ltd., having its corporate office at 502, Som Datt Chambers 1, 5, Bhikaji Cama Place, New Delhi 110 066, party of the first part hereinafter referred to as the principal (which expression shall unless excluded by and/or repugnant to the subject and/or context shall include its directors, agents, employees, nominees and/or assigns) and Banaras Beads Ltd., of A/1, Industrial Area, Varanasi 221 106, party of the second part hereinafter referred to as the agent (which expression shall unless excluded by and/or repugnant to the subject and/or context shall include its successors, agents, nominees and/or assigns). Whereas the principal approached the agent for financial arrangements against share applications for subscription to rights issue in the primary market of Shrishti Videocorp Limited and whereas the agent agreed to make financial arrangements in account of the principal on the terms and conditions and against charges to be paid by the principal unto the agent as enumerated hereunder. Now, this agreement witnesseth and it is hereby agreed by and between the parties hereto as follows : (1) The agent shall inform the principal of the amount that the agent would like to invest in the account of the principal for subscription to the rights issue of 12 per cent. unsecured fully convertible debentures (FCDs) of Shrishti Videocorp Limited. (2) The principal, thereafter, shall furnish the agent with the particulars of rights issue due to open from April 18, 1995, to May 20, 1995, wherefore the principal would like the agent to subscribe in its account. (3) The agent, subject to his willingness and agreeing to invest in the rights issue specified by the principal in terms of Clause (2) above, shall arrange to apply for the number of debentures specified by the principal provided however that the amount of applications shall not exceed the amount available for investment and indicated by their agent in terms of Clause (1) above. (4) The agent shall forward the xerox copies of the applications and acknowledgment receipts and upon intimation such applications shall be deemed to have been made in account of the principal. (5) However, the interest that may accrue to the agent on the deposits that he might make with bankers for issue of the Stock Invest Certificates shall be to the account and for the benefit of the agent exclusively and the principal shall have no claim and/or charge of any nature whatsoever thereon. (6) The principal shall within 180 days get transferred all the FCDs acquired by the agent on behalf of the principal and with a view to secure the undertaking, the principal has delivered to the agent a post-dated cheque No. 640731 dated November 18, 1995, for Rs, 1 crore drawn on the State Bank of India, Bhikaji Cama Place, Ring Road, New Delhi, which the agent shall be entitled to encash on the due date. The principal hereby assures that the cheque shall be duly encashed on presentation on the due date. (7) That for the finances provided by the agent to the principal, the principal has agreed to pay commitment charges of Rs. 15 lakhs in advance. (8) That with a view to further secure the agent, the principal has pledged with the agent shares and securities detailed in the schedule here-under. The agent shall be entitled to get its charge, registered under the provisions of the Companies Act with the companies for which the shares are pledged. (9) That in case the principal commits any default or the cheque is bounced, the agent shall be entitled to sell in open market at the rate then prevailing the FCDs of Srishti Videocorp Limited acquired by the agent on behalf of the principal as well as the shares pledged by the principal with the agent by way of security and recover the amount advanced by the agent on behalf of the principal in acquiring the FCDs and further interest at 28 per cent. per month for the days of default and all expenses incurred in this regard. (10) That all costs of acquisition of FCDs and transfer shall be on account of the principal. (11) That any dividend, bonus, rights share or interest payable in the intervening period will be the entitlement of the principal. (12) That this agreement has been entered into at Varanasi and the Varanasi court alone shall have the jurisdiction to entertain any suit or proceedings in case of any dispute between the parties. (13) The agent, immediately after submitting debenture applications shall draw his bill on the principal for the commitment charges at the rate specified in Clause (7) hereinabove, payment whereof shall be made by the principal to the agent forthwith. (14) The agent, on receipt of the allotment/refund advice, shall intimate the principal of the date of application supported with the xerox copy of such advice. (15) The principal shall keep with the agent post-dated cheques of Rs. 1 crore at the time of handing over the debenture renunciation forms. The, principal hereby assures that the cheque will be encashed on presentation on the due date, If, however, the cheque is not encashed on presentation on the due date it will be treated as default and a breach of the agreement. (16) The agent upon receipt of share certificates in terms of allotment advice against application made by the agent in account of the principal, shall deliver them to the principal on repayment of the investment made by the agent on behalf of principal."
(3.) The company at the time of execution of the agreement had handed over to the petitioner a post-dated cheque No. 460731 dated November 18, 1995 for Rs. 1 crore drawn on the State Bank of India, Bhikaji Cama Place Branch, New Delhi, towards repayment of the amount which the petitioner was required to arrange under the aforesaid agreement. The petitioner arranged the sum of Rs. 1,00,02,000 (one crore two lakhs) for the company to enable it to subscribe to 166700 fully convertible debentures of Shrishti Videocorp Ltd. The petitioner presented the cheque to the bank for encashment on November 21, 1995, but the same was returned unpaid by the bank with the remark "Effects not yet cleared. Please present again". The cheque was again presented to the bank on November 24, 1995, for encashment. This time it was again dishonoured by the State Bank of India with the remark "insufficiency of funds". It sent a message dated November 27, 1995, to the company. The company by its fax message on November 27, 1995, regretted its inability to pay the dues.;