IMPORTANT POINT
The court applied the provisions of The Insolvency and Bankruptcy Code, 2016 and The Companies Act, 2013 to determine the transfer of the winding up petition to the NCLT.

JUDGMENT

1. This petition has been moved under Sections 433(e), 434 and 439 of The Companies Act, 1956 by the petitioner company, seeking winding up of the respondent company, namely Technicast Engineers Pvt. Ltd., predicated on the non-payment of an amount of Rs.1,01,61,225/- by the respondent, which is due to the petitioner company.

2. Briefly stated, the petitioner company is engaged in the business of mining and raising lumpy Iron Ore at Inganijaharan Mines, Joda. While on the other hand, the respondent company is involved in various activities related to Ferrous and Non-ferrous casting, forgings, fabrication and engineering assembly of machinery and equipment as well as spare parts in all kinds of engineering industries.

BRIEF FACTS:

3. The broad conspectus of the factual matrix is that the respondent company entered into an agreement with one M/s. Bhanja Minerals Private Limited, the original lease holder of the mines, as a contractor for raising iron ore and further for deploying necessary personnel and machinery for the purpose of such raising. Thereafter, the respondent company entered into an agreement dated 20.06.2003 with the petitioner company engaging them as a sub-contractor for a period of three months, w.e.f. 01.07.2003. The agreement was further extended vide letter dated 30.10.2003 for a period of three years, w.e.f. 01.10.2003.

4. The agreement as well as the letter dated 30.10.2003 set out the relevant terms and conditions for payments to be made by the respondent company to the petitioner in accordance with the quantities of ore raised at different prices. Furthermore, in order to fulfil its obligations under the agreement, the petitioner deployed men and machineries at the site and raised monthly weigh bills in keeping with the weigh reports from the weigh bridge, which the respondent company was to settle within 15 days of submission.

5. The long and short of the matter is that the petitioner carried out its obligations till 05.05.2006, when unexpectedly and without reason, vide a letter of the same date, the respondent cancelled the work order of the petitioner. At that point, even after several representations by the petitioner, the respondent company failed to pay the dues owed to the petitioner, and withheld payment of Rs.1,01,61,225/-. It has been stated that various representations were made by the petitioner on 04.05.2006, 22.05.2006 and 06.06.2006. Thereafter, a settlement was also arrived at before the Deputy Director of Mines (DDM), Joda Circle, Joda, Keonjhar in a meeting held on 31.05.2006, and the same was recorded vide the petitioner's letter dated 14.06.2006. Subsequent to this, the petitioner also sent letters dated 09.07.2006 and 04.08.2006 to the respondent, however the dues remained unpaid.

6. Given that the status quo remained unchanged, the petitioner was pressed to send a statutory notice to the respondent and pursuant to the same, legal notice dated 13.12.2006 was sent to the respondent through registered post, to clear the outstanding dues of Rs.1,01,61,225/- along with interest @ 18% p.a. within a period of three weeks from the receipt of the notice. Despite the legal notice, the respondent company failed to repay its debts, and drawing an inference of its inability to pay the amount due to the petitioner, the present winding up petition was moved against the respondent company.

7. It may be appropriate to note that submissions have been made by the respondent company, challenging the maintainability of the present winding up on various grounds. The ground of challenge taken by the respondent company is primarily that the petitioner herein is neither a creditor of the respondent company nor is there any privity of contract between the parties, therefore the petitioner has no locus standi to move such a winding up petition. It is stated that the work order and agreement dated 20.06.2003, entered into by the respondent company, was with the sole proprietorship of Mr. B.N. Rana and not the