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TMI Blog1992 (9) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 433 of the Commissioner Act, 1956 (hereinafter called the Act") for winding up the respondent-company on the ground that it was unable to pay the admitted and due debt of the petitioner. The facts leading to the filing of the company petition, briefly, are: The respondent-company intended to erect a plant for the manufacture of sulphuric acid as per ISI specification No. IS-266-961 with a manufacturing capacity of 75 metric tones per day. It approached the petitioner for erection of the plant at Shahabad Markanda in Haryana. An agreement dated November 22, 1978, was arrived at between the parties, and a sum of Rs. 1,00,000 was paid to the petitioner on the same day. The-petitioner started the work of erecting the plant imme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-company agreed to furnish a bank guarantee of Rs. 4.50 lakhs, which was duly furnished by it. The remaining amount was agreed to be paid in instalments. The petitioner realised the amount of bank guarantee. Out of the balance amount of Rs. 12,47,985.52, the respondent-company made further payments. A sum of Rs. 10,69,724.10 was due from it. The petitioner also claimed an amount of Rs. 6,00,906 on account of interest up to October 20, 1983, at the rate of 18.5 per cent. per annum. The total amount due from the respondent-company comes to Rs. 16,70,630. In spite of a statutory notice, the respondent-company failed to discharge the liability. The petition was contested by the respondent, inter alia, on the ground that the plant had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged before the learned company judge. He submitted that there were no defects in the plant as was being now alleged by the respondent and for that he drew our attention to the directors' reports for the years 1980-81, 1981-82, 1982-83 and 1983-84. He further submitted that in these reports it was not shown that the new machinery had not been working properly. Learned counsel then submitted that the defects as are now pointed out in the written statement were never brought to the notice of the petitioner-company during the subsistence of the warranty period. Both these submissions were duly dealt with in extenso by the learned company judge and he arrived at the firm conclusion that the respondent-company had another plant of the capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter examining certain other letters placed on record by the respondent, the learned company judge came to the conclusion that even after the defects were pointed out to the petitioner by the respondent, the petitioner was not ready to rectify the same, which it had earlier undertaken to do. On the material placed on record, we find that the conclusions arrived at by the learned company judge that the defence set up by the respondent-company was in good faith and one of substance is likely to succeed in point of law. Apart from this, it will be noteworthy to refer to C.M. No. 1 of 1992 in Company Appeal No. 20 of 1985 filed by the petitioner, for bringing on record the award dated February 26, 1991, given by the arbitrator and the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner-company it is apparent that pursuant to the observations made by the learned Company judge, the petitioner-company resorted to the remedy as mentioned in the agreement dated September. 26, 1979, which stipulated that in the event of any dispute arising from the agreement, the matter could be referred to the arbitrator. The petitioner-company moved an application under section 20 of the Arbitration Act for appointment of an arbitrator before the Delhi High Court which appointed Mr. Justice Avadh Behari Rohtagi, since retired, as sole arbitrator. The arbitrator has rendered the award and the parties filed objections under section 30 of the Arbitration Act and the same are pending adjudication. In view of these subsequent eve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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