9911796707
TMI Blog1995 (3) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... nt from the Gleason Works, S.A., Parc Industrial De Ghlin, Bandour, Belgium. The amount due to the said the Gleason Works S.A. of Belgium was assigned by the said Gleason Works S.A. to the petitioner by deed dated 12-1-1994, a photostat copy of which has been attached as annexure A to the petition. It is stated that the name of the Gleason Works S.A. of Belgium has now been changed to Thenson Works S.A. of Belgium which has been added as respondent No. 2 in this petition. The Gleason Works S.A. is a joint stock company registered in Belgium and a wholly-owned subsidiary of the petitioner. The petitioner was controlling and managing its affairs and acting on its behalf till 10-11-1993, when the shares held by the petitioner the Gleason Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or completion within 30 days. In all other cases such consent will be granted, if at all, only upon the condition that buyer shall compensate seller for such can- cellation by paying to the seller that percentage of the total price of the contract that the work done and raw material or supplies used or for which commitments have been made bears to the total of the contract as the same may be determined by seller." 4. That the equipment ordered by respondent No. 1 was to be specifically manufactured by the petitioner in accordance with the specifications and indent placed by respondent No. 1 and were to be shipped by the petitioner in June, 1991, FOB port of shipment provided the letter of credit three months before the date of shipment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of imagination be said to be a company unable to pay its debts; that respondent No. 1 is a profit-making organisation and the machinery for winding up should not be allowed to be used by the petitioner as a means for realising the amount from the respondent-company. The annual reports of the respondent-company have been attached to show that respondent No. 1 is a profit-earning company. 6. No debt as envisaged under section 433/434 is due from respondent No. 1 to the petitioner as the petitioner s entire case is based upon a claim for unascertained damages which under any circumstances cannot be equated with debt; that the petitioner has suppressed the material fact regarding filing of civil suit prior to the filing of the present pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to a party, i.e., either to get it specifically enforced or to claim liquidated damages. It is not a case of specific performance. For ascertaining the liquidated damages, detailed investigation into facts has to be gone into and for that the petitioner has already filed a civil suit. Investigation of facts as in the present case cannot be made in these proceedings. In the proceedings under the Act, the company can be ordered to be wound up regarding ascertained sums of money due from the respondent to the petitioner when the respondent-company is unable to pay its debts. In the present case, it cannot be held that the respondent-company is unable to pay its debt because it is a profit-earning company which fact is evident from the ave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( supra ), the amount of damages was ascertained whereas the amount of damages is not certain in the present case. The counsel for the petitioner argued that in the cancellation clause which has been reproduced in the earlier part of this judgment, it is clear that damages for cancellation of contract were 100 per cent where the work had been completed; that in the present case, work had already been completed by the petitioner and the respondent-company has refused to lift the machinery which has been specifically manufactured for the use of the respondent-company; and, therefore, the same is liable to pay 100 per cent price of the contract. I do not find any substance in this submission as well. The amount of damages in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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