- (1.) In this appeal the order of the learned Company Judge dated 26th February, 2010 is questioned. The learned Trial Judge by impugned judgment and order has permanently stayed the said winding up application and the appellant has been given liberty to establish the claim in appropriate proceedings. The facts are summarized hereunder on which the winding up of the Company was prayed for.
(2.) Pursuant to purchase orders placed by the respondent herein namely the above company, during the period on and from 24th May, 2008 till 5th February, 2009, the appellant-petitioning creditor agreed to manufacture, sell and supply and did supply substantial quantity of Heat Resistant Cast Iron Castings (herein after in short 'HRCI') for construction, erection and installation of Rotary Hearth Furnace. The aforesaid agreement for purchase and sale and supply of the said materials were embodied in the number of the purchase orders themselves. The relevant terms and conditions for sale and supply are as follows:- (i) The said materials must conform to the stipulated percentage of metallic composition namely Copper and Chromium, (ii) Cancellation or order:
(3.) We reserve the option to cancel this order without liability or to return goods for rectification or replacement in either of the following circumstances:- (a) Non-delivery by specified date; (b) If materials or workmanship is faulty or of inferior quality or does not conform to our specifications. Should you fail within a reasonable time to rectify or replace goods returned by us, we are free to reject them and purchase elsewhere and you will be liable for any additional expense incurred by us. (iii) All supplies are subject to check and final approval at our godown/ factory or our customer's site, test certificate, guarantee certificate, instruction/maintenance manuals stipulated in our order must accompany the supplies. (iv) Neither initial acceptance nor final payment by buyer shall relieve seller from responsibility for defects in designs, materials or workmanship which appear within the period of a statutory limitation, if such work is done under special guarantee within the guarantee period and seller shall remedy such defects at his expense and indemnify buyer or the site owner for any damage or loss caused thereby.;