( 1 ) ADMIT. Service of notice is waived by learned advocate Mr S. N. Soparkar in O. J. Appeal No. 1/2000 and learned advocate Mr Kavina in O. J. Appeal No. 5/2000. In view of the facts and circumstances and at the request of the learned counsels appearing for the parties, both the appeals are ordered to be heard and disposed of finally, by this common judgment. Whether the order of the learned Company Judge, exercising his powers under section 433 (e) admitting and directing for advertisement in a winding up petition, at the instance of the original petitioning Company, Tata Iron and Steel Company Limited, is vulnerable, assailable, unreasonable and unjust or not? is the heart and substratum of this group of two appeals, wherein, common questions are involved against the common order, and upon request, they being disposed of by this common judgment.

( 2 ) OBVIOUSLY, first it would prompt us to articulate and highlight the relevant and important factual aspects which have culminated into this group of two appeals. FACTUAL MATRIX:

( 3 ) THE Tata Iron and Steel Company Limited, by filing Company Petition No. 134/99 for winding up of Micro Forge (India) Ltd. , inter alia, contending that it has become monetarily unable to pay the debts due to Tata Company, arising out of the breach of agreement of sale of 1500 M. T. Non-Alloy steel billets. This was the gist of the controversy between the parties. The Tata Company is the original petitioning Company, whereas, the Micro Forge Company is the respondent Company. They are, hereinafter, referred to, for the sake of convenience, and brevity as they were before the Company Court. The impugned order, whereby, the winding up petition came to be admitted along with the direction of publication of advertisement is questioned by both the original petitioner and the original respondent. The petitioning Company has filed O. J. Appeal No. 1/2000 for the limited challenge against the rejection of its request for appointment of provisional liquidator during the pendency of the winding up petition after admission, whereas, OJ Appeal No. 5/2000 is filed by the original respondent Micro Forge Company. Needless to reiterate that both the appeals arise out of one common order of the learned Company Judge recorded, on 22. 12. 99, in Company Petition No. 134/99.

( 4 ) BY virtue of an agreement, dated 20. 6. 95, original petitioner and the original respondent companies agreed for sale of 1500 metric tons Non-Alloy steel billets at Rs. 8420. 00 per metric ton CIF LO Kandla on High Seas sales basis, as per the version of the Tata Company. The goods were being carried on in the ship M. V. Stavros Kapetan, at the time when the sale took place. Incidentally, it may be mentioned that there was one more agreement between the parties with regard to consultancy and service charges, which, of course, would not figure in the controversy between the parties in these appeals. It is the further case of the Tata Company that as per the original contract the terms of payment were that the Company would open an Irrevocable Letter of Credit for 150 days in favour of the petitioning Company for the price of the goods.

( 5 ) AS per the case of the original petitioner, the respondent Company failed to open the Letter of Credit in favour of the petitioning Company, but as per the terms of High Seas sale the property in the goods passed to the Company while the goods were still, at sea. On 19. 7. 95, Micro Forge Company wrote to the Tata Company requesting to accept post dated cheques as the respondent Company was finding it difficult to obtain Letter of Credit from the bankers, and in consequence thereof, two cheques came to be presented to the Tata Company with communication, dated 1. 8. 95 towards consideration for the purchase of billets. Those cheques, of course, were undated and were handed over to Tata Company in lieu of the Letter of Credit, which was likely to be sanctioned and after which the cheques we