Rajesh Bindal, J. - (1.) The present petition has been filed under Sections 433 (e) and 434 (1) (a) and (b) of the Companies Act, 1956 (for short, 'the Act') for winding of the respondent-company.
(2.) Learned counsel for the petitioner submitted that the petitioner is a manufacturer of plant and machinery for manufacture of PVC conduit pipes. The respondent-company sought quotation from the petitioner for supply of PVC conduit pipes manufacturing plant. Vide letter dated 11.6.1996, the petitioner quoted the price thereof at 15,00,000/-. As per terms mentioned in the quotation, 2,00,000/- were to be paid in advance and balance was to be paid on delivery. On acceptance of the conditions mentioned in the quotation, the respondent-company sent a cheque of 2,00,000/- as advance payment on 13.6.1996 (Annexure P-2). In pursuance to the order placed by the respondent-company, the plant and machinery were supplied on 5.8.1996. Thereafter, the respondent-company made payment of 5,00,000/- each on 17.8.1996 and 29.8.1996, however, the balance amount was not paid despite the fact that plant was supplied, erected and satisfactorily commissioned at the site. Vide communication dated 19.12.1996, the petitioner had written to the respondent-company intimating about successful commissioning of the plant and also requested for payment of the balance amount. Besides the balance, the respondent company had even failed to issue statutory sales tax forms on account of which the petitioner had to incur higher tax liability. Even communications dated 24.1.1997 and 10.2.1997 requesting for payment of the balance amount and issue of statutory sales tax declaration did not yield any result. Legal notice dated 26.3.1997 was got served upon the respondent-company, however, instead of replying to the notice, the respondent-company vide letter dated 28.3.1997 pointed out that the plant was not production worthy, though no specific defect was pointed out. On account of non-issuance of statutory sales tax forms, the petitioner issued a debit note of 1,32,000/- on 12.12.1997. When despite repeated requests and reminders the payment was not made, the petitioner got a legal notice dated 24.2.1999 issued, which was replied to by the respondent-company by raising false and frivolous pleas. The same was followed by notice dated 26.7.1999 for winding up of the company, which was replied on 2.8.1999 reiterating the stand earlier taken in the reply to the legal notice, which was not tenable as the plant supplied by the petitioner was successfully installed and was operating to the satisfaction of the respondent-company. The company was earning substantial profit, as is evident from the balance sheet produced by it on record for the year 1999-2000. In that balance sheet, the respondent company has shown that a sum of 2,94,900/- is due to the petitioner which also makes the debt as admitted, but despite repeated requests and reminders, the respondent-company is deliberately not paying the same. Even if it is functional, still it cannot avoid payment of due liability, hence, deserves to be wound up.
(3.) The defence raised by the respondent-company was not bonafide as the same had been raised only with a view to avoid payment. If the plant was not functional properly, the respondent would have raised issue with the petitioner and claimed damages or other action but no such proceedings were initiated. It was further submitted that though stand is sought to be taken in the reply that the company suffered loss but there is no material produced on record in support thereof.;