SUDERSHAN KUMAR MISRA, J.

1. This petition under S.433(e) and 434 of the Companies Act, 1956 for the winding up of M/s ANG Auto Ltd. (hereinafter referred to as the “respondent”) has been filed by M/s Guangdong Fuwa Engineering Manufacturing Ltd. (hereinafter referred to as the “petitioner”) on the ground that an amount of USD 582,095.40 is due and payable by the respondent to the petitioner. CA No. 1262/2009 has also been filed by the petitioner, praying for the appointment of a provisional liquidator.

2. The respondent is a public company limited by shares and is incorporated under the Companies Act, 1956. The registered office of the respondent company is within the jurisdiction of this Court. The respondent is stated to be in the business of assembling and manufacturing various automobile components.

3. The petitioner is a company registered in Guangdong, China, and is stated to be a manufacturer and supplier of automobile components.

4. According to the petitioner, the parties executed an Exclusive Collaboration Agreement (hereinafter referred to as the “Agreement”) on 21st May, 2005, whereby the petitioner was to supply certain goods to the respondent on the terms contained therein. The duration of the Agreement was for an initial period of 5 years. As per the Agreement, the petitioner had to exclusively supply its products in India to the respondent, and to no other buyer, company or individual, either directly or indirectly, for export from or usage in India. Further, Article 2 of the Agreement, which governed supply and purchase, stipulated that the payment for the goods supplied by the petitioner was to be according to the prices determined in accordance with, and subject to, the terms and conditions of the purchase orders placed from time to time by the respondent with the petitioner. Provisions for the termination of the Agreement were also specified in Article 7 thereof.

5. By a letter dated 18th December, 2007, addressed to the Managing Director of the respondent, the petitioner terminated the Agreement with effect from 1st January, 2008 due to, “non performance of ANG?s agreement of purchase of Fuwa?s products over the last three years”. However, by the same letter, the petitioner offered, “exclusivity of the proprietary design of AX 30/20 Axle Tube to ANG Group”, but, “withdrew all exclusivity of Fuwa?s products”.

6. Admittedly, even after the termination of the Agreement by the petitioner, as aforementioned, the respondent continued to place purchase orders with the petitioner. The petitioner supplied the goods in respect of these purchase orders, which fact is not disputed by the respondent. Invoices were raised by the petitioner in respect of these goods, with a specific term contained therein that the respondent was required to make the payment for those goods within 75 days of the date of issue of each invoice. The details of the invoices are as under :

S.No Invoice Number Date of Invoice Due Date Amount due (in USD)

1. FW080224 16th April, 2008 30th June, 2008 139,120.00

2. FW080214 17th April, 2008 1st July, 2008 79,131.00

3. FW080256 30th April, 2008 14th July, 2008 171,524.40

4. FW080277 7th May, 2008 21st July, 2008 148,691.00

5. FW080308 21st May, 2008 4th August, 2008 122,760.00

The total amount due on these invoices comes to USD 661, 226.40. On 18th July, 2008, the petitioner sent a statement of account to the respondent showing this amount as due from it.

7. Repeated emails were sent by the petitioner to the respondent in respect of the aforesaid amount, copies of which have been placed on record. In response to the petitioner?s email dated 6th August, 2008, which mentioned the overdue balance due to the petitioner as being USD 661, 226.4, the respondent categorically stated on 17th August, 2008 that; “Dear Mingming, I have spoken to my bank and they informed us that all the payments mentioned in your list would be done roughly in the next ten days tim