HARISH TANDON,J. - (1.) This winding up petition is at the instance of the petitioning-creditor for non-payment of the legally recoverable dues by the Company.
(2.) The winding up petition is based upon the dues relatable to the value of the goods held by the Company, money receivable from various customers and the amount collected by the Company from the sales of the product of the petitioning-creditor. An agreement was entered into in the letter form on February 18, 1998 between the petitioning-creditor and the Company to act as a handling agent and for sale of the goods manufactured by the petitioning-creditor. The salient feature of the agreement discernible from the averments made in the writ petition are; (i) the stock would be transferred by the petitioning-creditor to the Company (ii) the Company shall affect the sales of the product manufactured by the petitioning-creditor to various customers upon issuing the invoices. (iii) the sale proceeds collected by the Company shall be deposited in the account of the petitioning-creditor after deducting the commission at the rate of 10.5% of the sale proceeds as well as taxes and other expenses. (iv) the Company shall submit form F for stock transferred by the petitioning-creditor at the end of the subsequent month. (v) on failure to remit the sale proceed, after deducting the commission, taxes and other expenses within 40 days from the date of the invoice, the Company would be liable to pay and interest at the rate of 2% per month.
(3.) By a subsequent letter dated April 10, 2001, the earlier agreement was modified as certain dues, responsibilities and activities entrusted upon the Company was withdrawn and to be performed and/or observed by the petitioning-creditor. The petitioning-creditor underwent in change of management and ownership and the new management adopted policies, which resulted into a discontinuance of the agreement. Ultimately, the agreement was terminated on August 2, 2010, by giving three months time to the Company. In reply to the letter of termination, the Company issued raised in objection to unilateral termination citing the long-standing relation. The petitioning-creditor reverted back to the Company and confirmed to their stand that because of the change policy, the agreement with the Company cannot be continued further.;