Sangeet Lodha, J. - (1.) THIS Company Petition under Section 433 read with Sections 434 and 439 of Companies Act, 1956 (for short "the Act") has been filed by the petitioner Company, seeking winding up of the respondent Company -Hindustan Zinc Limited (for short "HZL"), on the ground of its inability to pay the debts.
(2.) THE facts relevant are that the petitioner Company, was awarded various contracts by the respondent -HZL for supply of grinding media balls. It is averred that the petitioner Company has executed successfully the various purchase orders issued by the respondent -HZL for supply of grinding media balls during the year 2006 to 2012. The present company petition relates to the purchase orders for supply of; (i) 125mm Hyper grinding media balls (ii) 20/90mm Hi -Chrome steel grinding media balls, the details whereof as set out in the company petition, reads as under: According to the petitioner Company, the goods supplied as per purchases orders, were duly inspected by the agent of the respondent -HZL and after being fully satisfied about the quality, quantity and other conditions of the consignments, the Goods Receipts Number (for short "GRN") were generated by the respondent -HZL, which are placed on record collectively marked as Annexure 3. It is averred that on 29.6.13, the respondent -HZL raised concern about mixing up of different size of grinding media balls in 20 mm, in two bags, approximately 2 MT. The petitioner Company clarified that these two bags were intended to be dispatched to some other buyer but by mistake the same were dispatched to respondent -HZL. The petitioner Company offered to replace the bags. According to the petitioner Company, the respondent -HZL without any reason and just cause and without extending an opportunity of hearing, put the petitioner's payment to hold. Later, without issuing any show cause notice, the contract awarded was terminated and the petitioner Company was black listed. That apart, the bank guarantee furnished by the petitioner Company for performance of the contract was also forfeited. On the petitioner Company invoking the arbitration clause, the dispute stands referred to arbitration and the petitioner Company has already submitted its statement of claim before the Arbitral Tribunal, which is being contested by the respondent -HZL by filing a counter thereto.
(3.) PRECISELY , the case of the petitioner Company in the present company petition is that the respondent -HZL having received the goods and agreed to make payment towards the goods purchased worth Rs. 34,71,005/ -, was liable to make payment thereof. It is claimed that the respondent -HZL is also liable to pay the interest on outstanding dues @ 24% quantified at Rs. 40,95,786/ -. According to the petitioner Company, there are two parts of recovery sought for by the petitioner Company, the part -I is an acknowledged debt and other claims like non payment of goods as per purchase order, losses, bank guarantee invocation, costs etc. are the claims in respect whereof the company has already invoked legal remedies. In other words, according to the petitioner Company, it is entitled to maintain the company petition seeking winding up of the respondent -HZL in terms of Section 433 (e) of the Act inasmuch as, it has failed/neglected to pay the outstanding dues towards the petitioner Company.;