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TMI Blog2010 (7) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... egistered office within the jurisdiction of this court. The petitioner alleges that the respondent placed an order for purchase of 4 Nos. of 10 KVA, 415 V, 50 HZ ALP Series UPS without batteries for Rs. 3,95,000 per unit and 2 Nos. of 5 KVA, 240 V, 50 Hz HC Series without batteries at the rate of Rs. 1,30,000 per unit. The total price of the goods is Rs. 18,40,000. As per the purchase order, 85 per cent. of the amount is to be paid after 60 days from the date of dispatch of goods and the balance 15 per cent. after the successful commissioning at site and acceptance by the Power Grid Corporation of India. It may be stated at this stage that the Power Grid Corporation of India has given a letter of intent to M/s. ITI Ltd., for Auxiliary Power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook up an evasive and invalid defence such as the goods not having been tested and the goods not meeting the specification, etc. 5. In reply to the petition for winding up, the respondent has given the background before the purchase order was issued to the petitioner for supply of UPS units, it was pointed out that on May 19, 2003, vide annexure R8, the petitioner was informed of the problems observed during site acceptance test conducted in the presence of the engineer of the petitioner. Vide annexure R9 dated September 9, 2003, the petitioner was informed that the Power Grid Corporation has raised objection in respect of the UPS supplied by the petitioner. 6. Since the quality of the supplies made by the petitioner were not up to the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which is evident from the issuance of the aforementioned C Form. On issuance of such Form, the transaction is complete and the respondent is liable to release the payment. The petitioner became entitled to the payment for the goods supplied. Failure to make payment for the goods received by the respondent shows its inability to meet the contractual obligations and to discharge the admitted liabilities. Consequently, the respondent has made itself liable for winding up. Reference is made to a judgment of this court reported as Ram Kumar v. Haryana Cotton Mills [1999] 1 PLR 799. 9. On the other hand, learned counsel for the respondent has argued that the UPS supplied by the petitioner were defective. The Power Grid Corporation has not acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of form C to enable the petitioner to avail of the concessional rate of sales tax but the respondent has also alleged that the UPS unit supplied by the petitioner were defective and came to be rectified only in January, 2006. The said stand of the respondent is corroborated by the communication annexure R10 as reproduced above. The petitioner has also agreed in the meeting held on October 31, 2003, that the petitioner would be eligible for payment only after final payment for the UPS is released to the respondent by the Power Grid Corporation. In view of the said fact, it is apparent that the defence of the respondent cannot be said to be untenable only for the purpose of defeating the claim of the petitioner. There exist serious dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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