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TMI Blog2012 (4) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the respondent-company would indicate the involvement of 'other parties in the transaction, who are not respondents in the instant petition the dispute requires detailed investigation of facts and evidence so as to understand the terms and conditions agreed to between the parties relating to the transactions – winding up application cannot be allowed. - CO. PETITION NO. 235 OF 2010 - - - Dated:- 2-3-2012 - A.S. BOPANNA, J. S.S. Naganand for the Petitioner. K. Suman for the Respondent. ORDER 1. The respondent is a company registered under the Companies Act and is a subsidiary of the State Trading Corporation of India Ltd., a Government of India undertaking. The petitioner alleges that the respondent is due and payable in a sum of Rs. 4,78.72,182/- (Rupees Four Crores Seventy Eight Lakhs Seventy Two Thousand One Hundred and Eighty Two only) to them, towards supply of 20,000 wet metric tonnes (WMT) of Iron ore fines. It is the petitioner's contention that the respondents are unable to pay their admitted debts and as such are liable to be wound up. The respondent-company have however filed a detailed objection statement and disputed that they are liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he trading in Iron ore is also being carried on from the year 2005 and export of Iron ore fines is undertaken under back-to-back contract terms and conditions with Associate Shippers at their cost and risk. Hence, it is the responsibility of the Associate Shipper to negotiate and conclude the price, quality, quantity, shipment schedules, terms of payment and such other conditions with the overseas buyer. The respondent-company acts only as a facilitator. As per the back-to-back contract, the respondent would invest its money in favour of the Associate Shipper on 80:20 ratio and the release of the 80% of the cost is made to the Associate Shipper for onward payment to the suppliers. Upon shipment of the Iron Ore against letter of credit established by the overseas buyer in favour of the respondent and after receipt of the inward remittance, the respondent would recover the amount invested with the fixed margin of profit and other expenses. 5. On explaining the nature of business of the respondent, with reference to the facts relating to the instant case it is contended that the respondent had to entered into a back-to-back contract with M/s. Devi Mineral Resources (I) Private Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as thereafter brought these aspects of the matter to the notice of DMRIPL immediately after 'the instant petition was filed. It is therefore contended that the respondent has not admitted its liability, but a fraud is being played by the petitioner. Even otherwise the respondent is commercially solvent and the petition for winding up would not lie. 7. The petitioners have filed their rejoinder. Apart from reiterating the contentions urged in the petition, the petitioner also contends that the proceedings of the Board meeting of respondent-company shows negative balance and therefore unable to pay their debts. The petitioners have further denied knowledge of the back-to-back contract since they are not parties to any such contract and that in any event, the said documents are prior to 15-9-2009. The petitioner has also stated that the respondent had business transactions with DMRIPL and they are due in sums amounting to Rs. 12.66 crores. The invoice dated 15.12.2009 as contended by the respondents is denied and the petitioner reiterates that the transaction relates to the invoice dated 15.09.2009 regarding which the transaction is admitted. 8. In the background of the rival ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of activity of the respondent cannot be disputed. In that view, the preponderance of probability of the instant transaction being one such transaction or not, needs to be examined. 12. The respondent-company in order to contend that the Iron ore Fines delivered is not due to the bilateral contract between the petitioner and respondent-company but also the role of other parties have relied on the agreement dated 21.08.2009 (Annexure-R3) entered into between the respondent company and DMRIPL. It is true that the perusal of the said agreement as pointed out by the learned senior counsel for the petitioner would indicate that the petitioner is not a party to the said agreement. However, a perusal of the agreement would indicate that the export order is from M/s. Devi Trading Company Ltd, Hongkong for export of iron ore Fines. In that regard, the respondent company, DMRIPL and Devi Trading Company have entered into a tripartite agreement dated 17.08.2009 and the same makes a reference to the export to be funded by the respondent company to DMRIPL. The said document also refers to the investment ratio as contended at 80:20 by the respondent-company and DMRIPL and with regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered by different parties at Krishnapatnam. Further, the said letter also indicates that the petitioner is a Trading House. In that background, the letters at Annexures-5(a) and 5(b) become relevant insofar as DMRIPL securing the Iron Ore Fines from different sources for the petitioner, The letters at Annexures-5(d) to 5(m) would indicate the role of the different parties involved in the transactions and it does not appear to be a simple transaction of the petitioner having supplied the Iron Ore to the respondent-company while the petitioners themselves are a Trading House. The correspondence at Annexures-R6(a) and R6(d) would also indicate that the petitioner has had certain correspondence with DMRIPL relating to issue of Form-H by the respondent-company. The letter dated 01.02.2010 (Annexure-R7) from DMRIPL to the respondent-company indicates details of the same quantity which is in question and the request for issue of Form-H, In that context, the letter (Annexures-8(a) and (b)) also refers to the issue of Form-H. Irrespective of the fact as to whether the invoice is dated 15.09.2009 no 15.12.2009, the fact remains that the petitioners throughout had sought only for issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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