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TMI Blog2012 (9) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... vits clearly appears to be suspect. Considering all the aforenoted aspects, this Court is satisfied that the respondent owes a debt to the petitioner; despite service of the statutory notice by the petitioner to the respondent, it has failed to liquidate the demand of the petitioner. Petition is accordingly admitted. Respondent directed to make the payment with interest within stipulated time - Decided in favor of petitioner - CO. Petition No. 475 OF 2009 - - - Dated:- 8-9-2012 - MS. INDERMEET KAUR, J. Upamanyu Hazarika, Raka Phookan and Paul Ray Paske for the Petitioner. Virender Ganda, Ashish Middha and S.K. Giri for the Respondent. ORDER Ms. Indermeet Kaur, J. - M/s Shyam Dri Power Mines Limited (hereinafter referred to as the 'petitioner') seeks winding up of Bhav Shakti Steel Mines Pvt. Limited (hereinafter referred to as the 'respondent company') under Section 433 read with Section 434 of the Companies Act, 1956. 2. Submission is that the respondent company had placed various purchase orders between the period from 17.04.2007 to 10.06.2007 upon the petitioner for the supply of 386.140 metric tons of sponge iron lumps at Sinnar, Nasik; the same wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Along with the reply the affidavit of the Commission Agent has also been filed. There are in fact two affidavits filed by the said Commission Agent. The first affidavit is dated 30.10.2010 and the second affidavit is dated 21.09.2011; submission being that in this affidavit also, the Commission Agent has disclosed that initially the goods supplied by the petitioner contained the iron ore content of 80% but thereafter the sponge iron contained only 50% FE; the respondent had informed the Commission Agent who in turn had informed the petitioner who had agreed to lift the aforenoted defective goods but the same have not taken back; the affidavit further discloses that Form 'C' had been issued after two years only at the assurance of the petitioner that he would lift this defective material. 8. Rejoinder has also been filed to the reply of the respondent. It is not in dispute that the Commission Agent was the commissioning agent between the petitioner and the respondent; it has been reiterated that goods were supplied by the petitioner to the respondent which fact has been admitted; further submission being that the affidavit of the Commission Agent is a mere collusive device to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the affidavit which is a part of the record of this Court. 13. On merits, the learned counsel for the respondent submits that this is a civil liability which has arisen as there are disputed questions of fact and law which cannot be entertained in a winding up petition. He has placed reliance upon a judgment of this Court reported as 2007 (3) ARBLR 402 Delhi Taipack Ltd. v. Ram Kishore Nagar Mal; submission being the 'C' form heavily relied upon by the petitioner although admittedly has been issued by the company but can at best be treated only as an acknowledgment of the goods received under the contract of the supply of goods and the price fixed to be paid for them; submission of the respondent being that the goods were defective and coupled with the fact that the Commission Agent has filed his affidavit supporting the stand of the respondent that the defective goods had been promised to be lifted by the petitioner clearly shows that a dispute has arisen on facts which cannot be answered in this petition. 14. Record has been perused. 15. The transaction between the parties is admitted. Admittedly goods had been supplied by the petitioner to the respondent. It has also com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of an application filed by him, a fresh affidavit of the Commission Agent was permitted to be taken on record. This second affidavit is dated 21.09.2011. 18. Learned counsel for the petitioner points out that the Commission Agent was only acting as an agent between the parties for a transaction which had last culminated in July, 2007; his knowledge about the defect in the goods supplied by the petitioner to the respondent and the promise of the petitioner to lift these goods is based on un-known information as admittedly he had no role to play between two parties after the transaction had been completed between them in July, 2007. The additional fact incorporated in the second affidavit has also been pointed out by the learned counsel for the petitioner which is to the effect that the petitioner had given an assurance to lift the defective goods in March, 2009 which date did not find mention in the first affidavit dated 30.10.2010; submission being that the affidavit of the Commission Agent is a collusive arrangement between the respondent and the Commission Agent; this submission also finds mention in the rejoinder affidavit filed by the petitioner. 19. It is also relev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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