9911796707
TMI Blog1999 (8) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 cubic metre/hour for a total price of Rs. 2.50 lakhs. In pursuance of the purchase order dated September 16, 1996, the machine was fabricated, erected and installed at the site of the respondent. Intimation regarding despatch of the machine was sent. Thereafter the machine was commissioned and performance of the machine was observed by deputing the engineer/technician of the company. The respondent-company failed to make payment for the machine and prolonged the issue to remit the payment. An undertaking had been given by the respondent-company that payment would be made after the trial run of the machine. The petitioner contends that it is a creditor to the tune of Rs. 2,77,750 including taxes and despite repeated demands, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated September 5,1996. It raised the bill referred to above. The machine supplied by the petitioner did not function according to the specifications. The petitioner was informed many times that the equipment was not working as per the specifications but no response was made by the petitioner. The efficiency was stated to be only 33 per cent. The respondent-company sent a letter dated November 24, 1997, requesting the petitioner to do the needful. After persistent request, Shri Harjinder Singh was sent to check the machinery. He failed to do the needful and the machinery was still not in a working condition. Furthermore, it was asserted that the respondent is entitled to claim damages to tune of Rs. 1,50,000 for supply of the faulty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery at 2.5 per cent, consistency. 3. It is clearly understood by the supplier that the payment for the equipment shall be made only after the satisfactory performance of the equipment in all respects. No advance payment for any expenses that may be incurred by the supplier in delivering the equipment shall be made by us. In case of non-satisfactory performance or non-fulfilment of specified standards and specifications mentioned in this order, the order placed shall stand can celled with immediate effect and the equipment shall be returned by us to the supplier. 4. Any expenses incurred or to be incurred of whatsoever nature in sup plying the machinery like sales tax etc., shall be borne by the supplier. The cost that may be incurred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount. The court can only direct winding up if the defence is found futile, frivolous or without basis. When it is apparent from the facts mentioned above that as yet it cannot be adjudicated if the machine was giving performance in a satisfactory manner or not, particularly when a civil suit had been filed at Palwal by the respondent, at this stage when the questions are in controversy, it cannot be termed that it is a fit case to direct winding up of the respondent company. For these reasons, the petition must fail and is dismissed. By way of abundant cauction it is added that if the petitioner is choosing to file the civil suit, nothing said herein should be taken as an expression of opinion on the merits of the matter. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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