9911796707
TMI Blog2009 (8) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the work were noticed by the appellant, the said company was requested to rectify the same. But, they failed to rectify the same, and, hence, the appellant intended to take legal action against them. However, after several discussions, a revised design was made by the said company for the work to be done. The appellant considered the request of the said company and issued a revised work order for Rs. 4,13,30,168 after getting indemnity bond and guarantee from the respondent. The mobilisation advance of Rs. 31.33 lakhs was paid after adjusting the advance already paid. The appellant also paid Rs. 35.12 lakhs towards 75 per cent of the cost of 10 lakh pavers as requested by the said company. In spite of the same, the said company failed to perform any of its obligations. (b)In the review meeting held, the said company expressed its inability to do work due to financial crisis and requested to withdraw from the contract. A huge stock of appellant's pavers lying in the respondent-company was sold without the consent of the appellant. Thus, both the respondent and the said company delayed the appellant's project. The mobilisation advance was also not returned by the said company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be dismissed. 4. The appellant also filed a rejoinder. 5. The learned Single Judge on scrutiny of the materials available and hearing the submissions made, took the view that the appropriate remedy for the appellant/petitioner was not seeking to wind up by approaching the Company Court and dismissed the petition. Aggrieved, the appellant/ petitioner has brought forth this appeal. 6. Advancing arguments on behalf of the appellant, the learned counsel would submit that the impugned order was erroneous since the learned Single Judge has neither considered the factual nor the legal position; that the Court should have considered the genuineness of the deed of guarantee dated 25-7-1997, executed by the respondent-company for the due performance of the terms and conditions in the letter of intent dated 25-3-1997 and the work order dated 2-4-1997 to VIPL; that the fact that in the balance sheet of the respondent-company for the years 1997-98 and 1998-99, the respondent has well admitted that it had given a corporate guarantee to the appellant; that the fact of execution of the guarantee was not disputed in the balance sheets 1997-98 and 1998-99; that it was also executed by Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee in the work order; that it is not correct to state that neither at the time of entering into the contract by the appellant with VIPL nor at the time of the first work order dated 2-3-1997, the parties have never contemplated any third party guarantee for the performance of the work by VIPL; that the non-mention of the execution of the guarantee agreement in the subsequent work orders and correspondence may not in law help the respondent to avoid its legal obligations and, thus, the non-production of the documents and the non-mention of the guarantee were all not necessary to come to a conclusion or be taken as a basis to take a decision that there was a bona fide dispute in respect of the guarantee dated 25-3-1997 executed by the respondent-company; that it is pertinent to point out that there was a categorical admission about the execution of the guarantee in the respondent's balance sheets of the years 1997-98 and 1998-99; that the fact which remained to be considered is that there was a debt due by VIPL for which the respondent gave guarantee, and the same was duly acknow-ledged by them; that the appellant has established a prima facie case on the admissions made by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the company; but the company failed to perform any of its obligations under the work order; that a sum of Rs. 41.33 lakhs was due by way of mobilisation advance paid to the said company and Rs. 21.62 lakhs being the balance in pavers account after adjusting the value of the work done and recovery by way of retention and mobilisation advance; that the respondent admitting its liability has entered into an agreement dated 1-4-1997, and, thus, the respondent is liable to pay the balance amount, and despite many letters of demand, the amounts were not paid, and, therefore, the respondent is liable to pay Rs. 62.95 lakhs as it has agreed to indemnify the appellant for the damage caused. The respondent contested the petition, inter alia, by filing a preliminary counter questioning the maintainability of the petition itself mainly contending that one Mr. Ramakrishna was the Managing Director of VIPL; that he was also the Managing Director of the respondent-company from 26-2-1996 to 17-6-1997; that he was also the Chairman of the Board of Directors of the respondent-company from 20-3-1995 till 11-12-1997; that the said Ramakrishna and his associates abused their fiduciary relationship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a typographical error since it has been mentioned in number of places. It is admitted by the appellant that there was a fresh work order issued by VIPL on 2-4-1997. Even in that work order also, there was no reference to the third party guarantee. The minutes of the meeting dated 20-8-1997, was relied on by the appellant to state that Mr. Ramakrishna had assured reimbursement and also the return of the mobilisation advance. But even in that minutes of the meeting also, there was no reference to the third party guarantee. That apart, in the subsequent letter dated 10-9-1997, addressed by the appellant to VIPL, the third party guarantee is not referred to. Thus, number of documents which, according to the appellant, were material, were not placed. The documents which were placed before the Court though have arisen at a different point of time, nowhere indicate that the parties contemplated a third party guarantee. 13. The learned counsel for the appellant brought to the notice of the Court the agreement dated 1-4-1997 wherein under the caption "Advance Payment for Pavers", there was no reference to third party guarantee. It remains to be stated that so far as that agreement was co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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