ORDER

% 09.01.2024

1. Learned counsel appearing for the respondent company requests for accommodation stating that the main counsel is unavailable today as he has gone to Haridwar to perform the last rights of his grand- mother.

2. On the other hand, learned counsel for the petitioner requests for a short accommodation requesting time to file a rejoinder.

3. There is no need to file any rejoinder.

4. The present petition under Section 433, 434 and 439 of the Companies‟Act, 1956 for winding up of the respondent/company was dismissed in default for non-appearance of the petitioner and his counsel on 15.09.2022. The present application bearing CO.APPL. 665/2022 is moved on behalf of the petitioner for restoration of the winding up petition.

5. Reply has already been filed on behalf of the respondent.

6. Learned counsel for the petitioner submits that no appearance could be put on 15.09.2022, since the petitioner is an NRI and the previous counsel was not diligent in pursuing the present matter and had failed to appear as a result of which the matter got dismissed on 15.09.2022. The application is supported by an affidavit of Mr. Ashutosh, Authorised Representative.

7. Although, the application is vehemently opposed, finding sufficient cause and in the interest of justice, the same is allowed. The winding up petition is restored to its original number and position.

8. Briefly stated, the petitioner company entered into a „Machinery Purchase Agreement‟ with the respondent company which is primarily engaged in trading as well as infrastructure activities, for the delivery of certain machinery and material to be used in carrying out a contract for construction of roads in Meghalaya. The above mentioned agreement was entered into between the parties on 12.08.2013, for a sale consideration of Rs. 2,05,00,000/- for specified machinery, on an ex-work basis. On 17.08.2013, the respondent paid earnest money in the nature of an advance payment of Rs.25,00,000/- vide Cheque bearing No. 869061 dated 20.08, and undertook to pay the remaining sum of Rs. 1,80,00,000/- as also applicable taxes and statutory dues within 20 to 30 days from the date of the execution of the agreement.

It was stipulated that in case the respondent fails to pay the remaining amount, the petitioner may forfeit the sum paid as advance and the agreement would become „null and void‟ in so much that the buyer will not have any rights over the machinery supplied.

9. It is stated that the petitioner company duly delivered the specified machinery on receipt of the earnest money, however, the respondent company failed to make the payment of the balance amount within the stipulated time. The petitioner requested the respondent to make payment of the balance amount and fulfil its obligations under the agreement vide email dated 10.10.2013 addressed to the respondent, who responded vide emails dated 13.10.2013 and 18.10.2013, denying payment of the remaining amount and made a frivolous complaint with respect to the functioning of the machinery supplied by the petitioner.

10. Thereafter, on the basis of the inability of the respondent company to discharge its contractual debt, the petitioner was forced to serve a statutory notice dated 02.12.2013 through its counsel, upon the respondent at their registered corporate office, demanding payment of the remaining contractual amount of Rs. 1,80,000/- along with Rs. 30,00,000/- on account of applicable taxes and statutory dues, which was received by the respondent company. Despite being in receipt of the said notice, the respondent neither replied to the same nor made full payment of the dues owed to the petitioner company within the statutory period of 21 days from receipt of the notice. Hence, the present company petition was preferred by the petitioner seeking winding up of the respondent company owing to its inability to discharge its debt.

11. It is apposite to note that the present company petition is a complete non-star