( 1 ) THE petitioner herein has filed this winding up petition under Sections 433 (e), 434 and 439 of the Indian Companies Act, 1956 (hereinafter referred to as `the Act ) seeking winding up of the respondent company, namely, The Minerals and Metals Trading Corporation of India Limited (`hereinafter referred to as `the respondent company ). It is a public sector undertaking. The cause for filing the present petition has arisen in the following circumstances:

( 2 ) THE petitioner is the agent of M/s Thyssen Stahlunion Gmbh, Germany ( (hereinafter called `the principals ). For the relevant period i. e. in the year 1990, MMTC Ltd. was the canalising agency for import of steel etc. Any party in India seeking import of goods of this kind had to move through the respondent company. Another public sector undertaking, Hindustan Petroleum Corporation Limited (HPCL) was in need of such material. In order to facilitate this import for HPCL, the respondent company placed an order dated 11th January, 1990 on the principals. The purchase order also specifies the HPCL as the consignee and the port of discharge of goods was Bombay whereas the port of loading was North Sea Port. In fact before placing this order, the respondent company had floated Tenders Enquiry No. MMTC/99/tender-262 A/hrsh/89 dated 1st November, 1989, and accepting the tender of the principals, the order in question was placed.

( 3 ) TOTAL quantity ordered was 4000 M. T. deep drawing quality H. R. Steel sheets as per IS: 6240-1976 Grade B specification for manufacture of low pressure gas cylinders for a price of DM 37,52,000. In Column 8 of the purchase order name of the petitioner company is stated as an authorised representative of the principals. In column 18 it is mentioned that the agency commission would be DM 18,760 i. e. at the rate of 0. 5% of Candf value.

( 4 ) THE purchase order was duly executed with the petitioner company providing agency services in India, representing the principals. The consignee, namely, HPCL had opened the Letter of Credit (Loc) for a total value of DM 37,52,000 through State Bank of India, Commercial Branch, Bombay. It has come on record that after the first consignment, the respondent company wrote letter dated 13th July, 1990 to the Manager, State Bank of India authorising the said Bank to arrange remittance of agency commission to the petitioner company in Indian rupees equivalent to DM 4,678. 09 (0. 5% of the gross invoice value of that shipment being DM 935617. 48 ). It was also stated that this agency commission as well as charges of the Bank would be debited to account of HPCL Bombay and a copy of this letter was marked to the petitioner company. When subsequent instalments of shipments were dispatched, similar letters dated 9th November, 1990 and 19th April, 1991 were written asking the Bank to remit the petitioner company its agency commission. All these letters are identically worded. It would be useful to reproduce the language contained in one such letter i. e. letter dated 13th July, 1990:

"in terms of Clauses 16 and 17 of the said LA, we hereby authorise you to arrange remittance of the Agency Commission to Indian Agents in Indian Rupees equivalent of DM 4678. 09 at the rate of exchange prevailing on the date of negotiation of documents of the rate of exchange prevailing on the date of Bill of Lading in respect if ICs established on DA/credit terms as the case may, at the following address, if not already paid:- (DM Four thousand six hundred seventy eight point zero nine only) m/s Hansa Industries Pvt. Ltd. 440, Mathura Road, new Delhi the details of the shipment are as under: vessel B/l Date Invoice No. Gross Invoice value beate 30. 1. 90 0372725 DM 935617. 48 oldendroff Ag. Commn. Qty. DM 4678. 09 997. 460 the agency commission as well as your charges will be debited to account of M/s Hindustan Petroleum Corporation Ltd. ,bombay. "

( 5 ) IT is clear from the above that the respondent company recognised the r