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TMI Blog2001 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent-company and appointment of the official liquidator under the provisions of the Companies Act, 1956. It is the case of the petitioners that the petitioners had entered into a contract with the respondent-company for supply of 100 kgs. of 2.3 Dideoxycyrtidine 'chemicals' by the respondent-company to the petitioners for a sum of U.S. Dollars 5,60,000. Pursuant to the said contract certain transactions and dealings took place between the parties, the details of which are not material for our purpose. According to their petitioners, the respondents did not honour the commitment of supply of the aforesaid chemicals in full. It is an admitted position, however, that the respondents had supplied the ordered chemicals to the tune of about 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, the petitioners are entitled to get an order from this court of winding up of the respondent-company. It was further submitted by the learned counsel that in view of the failure on the part of the respondents, they had terminated the contract and they had also allowed the respondents to adjust the amount equivalent to the price of the chemicals already supplied by them and return the balance amount. The learned counsel, therefore, submitted that in spite of the repeated requests the respondents failed to return the amount and, therefore, a notice under section 433 read with section 434 of the Companies Act was issued by the petitioners to the respondents. 2. Shri D'Vitre, the learned counsel for the respondents has seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be filed in the court of law. The respondents in their reply to the petitioners have explained how they were not liable to be wound up and have questioned the legality and validity of the notice issued by the petitioners. He further pointed out from the affidavit in reply that there are a number of questions of fact which would require not only documentary but also oral evidence. The claim of the petitioners was not an admitted or a liquidated claim as a debt which the petitioners claim, they are entitled to recover by this extraordinary process under the provisions of the Companies Act. Shri D'Vitre has relied upon the following judgments in support of his case that the present petition should not be admitted : 1. Amalgamated Commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also equally important that on the basis of the contract between the respondent and petitioners, the respondent had purchased from the market raw material required for the supply of chemicals as per the exclusivity agreement between the parties. The respondents claim that the raw material was purchased by them to meet the contract and under the exclusivity agreement they could not have supplied the final product of the said raw material to anyone else in the market. It was submitted by Shri D' Vitre that nobody else could have purchased the said material and therefore the respondents have suffered a huge loss on that count. In my opinion this and other points cannot be decided in the present company petition under sections 433 and 434 which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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