P.C.JAIN, J. - (1.) IN this petition under Section 433 read with Sections 439B of the Companies Act, 1956, the petitioner, M/s. Hind Techno Machines Pvt. Ltd. has prayed that the respondent Company M/s. Jaipur Wire Industries Pvt. Ltd, be ordered to be wound up by this Court.
(2.) THE facts of the case lie in a narrow compass and may be stated thus: The petitioner is a Pvt. Ltd. Co. registered and incorporated under the Companies Act, 1956. The petitioner company deals in wire rods. The respondent is also a company incorporated as a private limited Company under the Companies Act, 1956. The case of the petitioner is that in terms of the orders placed by the respondent company to the petitioner, the petitioner supplied different quantities of wire rods against bills as detailed below: Bill No. 196 -dated 21 -1 -1984; Bill No. 198 -dated 24 -1 -1984;Bill No. 215 -dated 4 -2 -1984; Bill No. 221 -dated 15 -2 -1984;Bill No. 231 -dated 28 -2 -1984; Bill No. 241 -dated 12 -3 -1984;Bill No. 252 -dated 22 -3 -1984; and Bill No. 274 -dated 12 -4 -1984. Supplies were made between 21st January, 1984 to 12th April. 1984. It was further the case of the petitioner that while the payments relating to the material supplied by the petitioner to the respondent Company against Bills No. 196 dated 21st January, 1984; No. 198 dated 24th Jan., 1984; No. 215 dt. 4th Feb., 1984; No. 221 dated 15th Feb., 1984; No. 231 dt. 28th Feb., 1984 and No. 241 dated 12th March, 1984 were cleared, though after a considerable delay between 10th Feb., 1984 and 4th April, 1984; but the respondent Company failed to clear the last two bills of the petitioner i.e. No. 252 dated 22nd March, 1984 for Rs. 52,857.34 and Bill No. 274 dated 12th April, 1984 for Rs. 22,920/ - amounting to a total of Rs. 75,777.40. The petitioner has further averred that he repeatedly reminded the respondent Company for making payment, but the petitioner did not make the payment and, thereafter a written request was sent on 22nd Dec, 1984, for immediate payment of the outstanding bills. After receiving the said communication, the respondent Company vide letter dated 1st January, 1985, informed the petitioner that Bill No. 274 dated 12th April, 1984, was not available in the company's record. In the reply, the Company also made a statement that the petitioner had at no time reminded the respondent Company for making any payment. In the same reply, the respondent Company also urged that it was agreed between the parties that the respondent Company may adjust the outstanding amount against the losses suffered by them due to the alleged non -supply of 34.195 MT of MS Wire Rods by the petitioner out of the agreed quantity of 80 MT. As demanded by the respondent Company, a duplicate copy of Bill No. 274 was sent by the petitioner. It is also stated by the petitioner that apart from sending duplicate copy of Bill No. 274 dated 12th April, 1984, the petitioner also sent a copy of letter dated 21st April, 1984, received from the Standard Transport Corporation, through whom the consignment had been delivered, as the Company had disputed the liability on the ground of want of proof about delivery of the material relating to Bill No. 274. It is also stated by the petitioner in the petition that vide letters dated 24th January, 1985 and 15th Feb., 1985, the petitioner again requested for making payment of the outstanding dues. The petitioner vide letter dated 26th Feb., 1985 categorically denied any agreement between the petitioner and respondent Company for adjustment of outstanding dues against the alleged losses suffered by the respondent Company. After that also correspondence was exchanged between the parties. Ultimately, the petitioner had sent a notice under Section 434 of the Companies Act, 1956 on 9th October, 1986, whereby a request was made to clear the outstanding dues amounting to Rs. 1,17,644/ - within a period of 21 days of the receipt of the notice. The respondent Company received the notice and replied to it. In short, the case of the petitioner is that there was no agreement between the parties for supply of any definite quantity of material and when the non -petitioner had failed to make the payment of the aforesaid two bills, he was under no obligation to deliver further material to the petitioner and that there was no agreement between the.parties to adjust the alleged losses suffered by the petitioner against the outstanding dues of the aforesaid two bills. It is also stated by the petitioner that he was ready and willing to supply the material, but the breach of contract was committed by the respondent Company by not making the payment of the aforesaid bills despite repeated requests. The petitioner also pleaded that the counter -claim made by the non petitioner is absolutely imaginary and without any foundation. It is also pleaded by the petitioner that the theory of counter claim has been cooked up to forestall the defence.
(3.) A notice to show cause was issued to the respondent Company as to why the petition be not admitted and published. In response to the show cause notice, the non -petitioner filed a reply in which it is contended that no case is made out by the petitioner for filing a petition for winding up of the Company. It is also stated that the petitioner is not a creditor; but in fact, the respondent Company has claimed a sum of Rs. 1,53,667.25 from the petitioner. It is also pleaded that the respondent Company has already filed a civil suit against the petitioner in the Court of District Judge, Jaipur City, Jaipur on 19th March, 1987, in respect of the said transaction, which is the subject matter of winding up petition. The respondent Company has further pleaded that the petitioner had agreed to pay the balance of the claim money after adjusting the losses incurred by the answering respondent and even after such an understanding the petitioner did not pay the balance amount of losses incurred by the respondent Company. It is specifically pleaded by the respondent Company that 80 MT of mild steel wire rods were to be supplied, but out of the said quantity 45.805 MT was only supplied. It is further pleaded that as the petitioner has failed to pay the dues as per the terms of the agreement dated 4tb February, 1984, the respondent Company has filed a civil suit against the petitioner. The respondent Company also claims to have the balance supply of 34.195 MT from the petitioner in addition to the amount claimed in the civil suit. Thus, the sum and substance of the defence raised by the respondent Company is that as the petitioner failed to supply the material the respondent Company had a right to adjust Rs. 75,777.40 against the loss suffered due to non -supply of the mild steel wire rods by the petitioner as per the agreement. In the affidavit filed along with the reply, the respondent Company has stated that a civil suit has been filed for the recovery of Rs. 77,889.85 against the petitioner Company, and the petitioner company claims 34.195 MT of wire rods being the balance of the contracted material.;