A petition for winding up of a company is not maintainable where the amount claimed is not an ascertained sum of money and the dispute between the parties is a bona fide dispute which can only be decided by a civil court.

Ashok Bhan, J. - Present petition under section 434 (1) read with sections 438 and 439 of the Companies Act, 1956 (hereinafter referred to as the Act) has been filed for seeking winding up of the company Punjab Tractors Limited (hereinafter referred to as respondent No. 1) which arises out of the following facts :

2. Petitioner is a creditor of the company by assignment from M/s. Gleason Works, S.A. Pare Industrial De Chlin, Bandour, Belgium. The amount due to the said the Gleason works, S.A. of Belgium was assigned by the said Gleason Works, S.A. to the petitioner by deed dated 12th January, 1994, a photostat copy of which has been attached as Annexure A to the petition. It is stated that the name of the Gleason works, S.A. of Belgium has now been changed to Thenson Works S.A. of Belgium which has been added as respondent No. 2 in this petition. The Gleason Works, S.A. is a joint stock company registered in Belgium and a wholly owned subsidiary of the petitioner. The petitioner was controlling and managing its affairs and acting on its behalf till 10th November, 1993. When the shares held by the petitioner the Gleason Works were transferred, that in accordance with the negotiations carried on between the petitioner and the respondent company through; M/s. Hypoids (India) Private Limited, the respondent company placed an order with the petitioner for three machines and tooling on 17th July, 1990 for a total price of 20,232,105 Belgium Francs equivalent to 600,000 US Dollars; that in the indent dated 17th July, 1990 following terms were stipulated :

(i) Machinery was to be supplied free on Board Port of Shipping in sea worthy packing. All other charges upto the port of loading were to be borne by the petitioner.

(ii) An irrevocable Letter of Credit was to be opened by Punjab Tractors Limited for Full FOB payment. Payment of Commission of Hypoids (India) Private Limited was to be paid in Indian currency 30 days after the receipt, inspection and acceptance of the material at the works of Punjab Tractors Limited.

(iii) The items were against import license set out in the indent :

Mode of despatch by sea."

The order was placed by respondent No. 1 through M/s. Hypoids (India) Private Limited who forwarded the same to the petitioner. The Gleason Works, S.A. acknowledged the receipt of the order of the respondent-company. There was a written contract in which there was a cancellation clause which reads as under :

"3. Cancellation : This contract shall not be subject to cancellation by buyer without the consent in writing of the seller. No such consent will be given where the work is 90 per cent complete or scheduled for completion within 3 days. In all other cases such consent will be granted, if at all, only upon the condition that buyer shall compensate seller for such cancellation by paying to the seller that percentage of the total price of the contract that the work done and raw material or supplies used or for which commitments have been made bear to the total of the contract as the same may be determined by Seller."

That the equipment ordered by the respondent No. 1 was to be specifically manufactured by the petitioner in accordance with the specifications and indent placed by respondent No. 1 and were to be shipped by the petitioner in June 1991 FOB Port of Shipment provided Letter of Credit three months before the date of shipment i.e. 3rd February, 1991 opened by the respondent company in favour of the petitioner; in breach of agreement Letter of Credit was not opened by February 1991 and instead respondent company sought various extensions which were agreed to by the petitioner; that on 27th April, 1992 respondent No. 1 illegally canceled the said order on the ground that after the placement of the orders the prices of the machines due to drastic changes in economic policy of the country have increased exorbitantly which makes the operation of the machines for their applications totally uneconomic and unviable for th