- (1.) This is an appeal against the order dated January 23, 1980, of the learned single judge (company-judge) admitting the petition of the respondent, United Asian Bank, Berhad, having its branch office at Penang, Malaysia (hereinafter referred to as "the bank") for the winding up of the appellant, Premier Vegetable Products Ltd., Jaipur (hereinafter referred to as "the company"). It arises in the following circumstances.
(2.) The company, through its general power-of-attorney holder, Mr. M.P. Jaju, entered into a contract with M/s. Patel Holdings for the supply of 1,000 metric tonnes of Crude Canadian Rape Seed Oil for the value of 7,25,000 U.S. dollars, as is evident from annex. R-4 dated June 28, 1977 (at page 97 of the file No. 4/79). It was a c.i.f. contract, and payment was to be made on presentation of documents on 90 days D/P basis through the Bank of Rajasthan, Fort, Bombay. The said M/s. Patel Holdings drew a bill of exchange on August 12, 1977, for 7,25,000 US. dollars on the company, payable to the bank at sight. The said M/s. Patel Holdings negotiated the said bill of exchange with the bank, and handed over to the bank the original bill of lading, the invoice and other documents. The said Patel Holdings, as per the order placed by the company and referred to above, shipped 1,000 metric tonnes of Crude Canadian Rape Seed Oil to Bombay by "S.S. Tofuku Maru ". The company was intimated by M/s. Patel Holdings of the despatch of 1,000 metric tonnes of Crude Canadian Rape Seed Oil per ship, named above, and also forwarded copies of the documents with regard thereto. The ship "Tofuku Maru" arrived at Bombay on or about 19th August, 1977. The company received a notice through Bakshi & Co., agents of the owners of the said ship, that the goods had arrived and were ready for unloading. The bill of lading was endorsed by the holder thereof in favour of the bank, and the bank was holding the same. The company, after executing the deed of guarantee (indemnity bond), dated August 24, 1977, took delivery of the goods from the ship. That guarantee of the Bank of Rajasthan Ltd., which was furnished by the company on the authority of which delivery was taken is alleged to be forged. The company, through Shri M.P. Jaju, its duly constituted attorney, vide letter dated December 15, 1978, acknowledged its liability to pay an amount of 7,25,000 U.S. dollars, and several other amounts due against other consignments to the bank with whom Patel Holdings had negotiated the bill of exchange together with interest. The bank by their advocate's notice dated March 3, 1979, addressed to the company called upon the company to make payment of the sum of 7,25,000 U.S. dollars or its equivalent in rupees ruling at the date of payment together with interest thereon at the rate of 9 3/4% per annum till payment within the statutory period of three weeks from the receipt thereof by the said company. But, in spite of the statutory notice, the company failed and neglected to pay the amount due or its rupee equivalent with interest thereon to the bank, although more than three weeks elapsed since the statutory notice was served upon the company. The bank filed a petition under Section 439 read with Sections 433 and 434 of the Companies Act, 1956 (hereinafter referred to as "the Act") on the grounds mentioned in Section 433(e) and (f) of the Act, viz., that the company is unable to pay its debts, and it is just and equitable that the company should be wound up.
(3.) The company entered caveat, and also submitted a reply to the petition for the winding up of the company. The main ground taken by the company in its reply was that no cause of action arose against the company for the presentation of a winding up petition, because the bill of exchange was never presented and accepted by the company. The cause of action, as shown in the petition, was non-payment of the amount of 7,25,000 U.S. dollars on the bill of exchange, and because the same was not presented and accepted, there was no relationship of creditor and debtor between the bank and the company, and, therefore, the petition was not maintainable, as it did not show any cause of action against the company. So far as the letter dated December 15, 1978 of M. P. Jaju, duly constituted attorney of the company is concerned, it was stated that the company had no knowledge about this acknowledgement, and further that the authority of Mr. M.P. Jaju had been revoked on September 4, 1978, and the said Mr. Jaju, therefore, had no authority to acknowledge the liability on behalf of the company on December 15, 1978.;