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Fred Hausmann Ag Vs. Bio-solar P. Ltd. - Court Judgment

LegalCrystal Citation
Subject Company
CourtDelhi High Court
Decided On
Case NumberC.P. No. 60 of 1984
Judge
Reported in[1987]61CompCas714(Delhi)
Acts Companies Act, 1956 - Sections 433 and 434
AppellantFred Hausmann Ag
RespondentBio-solar P. Ltd.
Cases ReferredDiwan Chand Kapur v. New Rialto Cinema P. Ltd.
Excerpt:
.....3. the point of limitation raised by the respondent is prima facie well-founded. 4. both from the petition as well as the replies, it is clear that the orders for the machinery were placed on the petitioner not by the first respondent company but by the national small scale industries corporation (nsic), new delhi (which has been subsequently added as a respondent to the petition). about ninety per cent......on three grounds : (1) the claim of the petitioner is barred by limitation as on date and was time-barred even as on the date of the filling of the petition. (2) the respondent company had not placed the order in question on the petitioner and there is no privity of contract on the basis of which the petitioner can sue, or seek the winding-up of, the respondent. (3) the machinery supplied by the petitioner was damaged and the petitioner, having refused to rectify the defects, was not entitled to the amount claimed. 3. the point of limitation raised by the respondent is prima facie well-founded. the only dated mentioned in the petition are june, 1980, and september, 1980. the petition was filed on february 10, 1984, but was found defective in that it was not filed by a person shown.....
Judgment:

S. Ranganathan, J.

1. This is a petition under section 433 and 434 of the Companies Act, 1956, for the winding up of the first respondent company. The case of the petitioner (a Swiss company) as set out in the petition is very short and it is this : The respondent company placed with the petitioner an order dated June 9, 1980 (amended on September 29, 1980), for the supply of certain machinery for a price of 85,270 Swiss Frances. The machinery was supplied but the respondent paid only 76,236 Swiss France and has defaulted in payment of the payment of the balance of 9,034 Francs (Rs. 59,570.63) with interest thereon at the rate of 18 per cent. per annum despite repeated demands including a formal notice of demand under section 434 dated January 2, 1984. The respondent company, thereforee, it is prayed, should be wound up.

2. Counsel for the respondent company opposes the admission of the petition on three grounds :

(1) The claim of the petitioner is barred by limitation as on date and was time-barred even as on the date of the filling of the petition.

(2) The respondent company had not placed the order in question on the petitioner and there is no privity of contract on the basis of which the petitioner can sue, or seek the winding-up of, the respondent.

(3) The machinery supplied by the petitioner was damaged and the petitioner, having refused to rectify the defects, was not entitled to the amount claimed.

3. The point of limitation raised by the respondent is prima facie well-founded. The only dated mentioned in the petition are June, 1980, and September, 1980. The petition was filed on February 10, 1984, but was found defective in that it was not filed by a person shown to be having a proper and valid power of attorney. This defect was rectified on April 17, 1984, and the petition, after removal of certain other defects, was refilled only on May 10, 1984. Even taking the earliest of these dates, viz., February 10, 1984, the petition was time-barred from the dates in June and September, 1980, mentioned in the petition. The invoice, annexed to the petition, is dated January 20, 1981, and even on the basis of this date, the claim was time-barred by February 10, 1984. Moreover, it has been held by Anand J. in his judgment dated May 16, 1985, in a batch of cases (e.g., Diwan Chand Kapur v. New Rialto Cinema P. Ltd. ), that a winding-up petition is liable to be dismissed even where the period of limitation had not expired when the petition was filed but has expired by the time the winding up petition to be dismissed even where the period of limitation had not expired when the petition was filed but has expired by the time the winding up petition comes up for hearing. If this principle is applied, the present petition is liable to be dismissed in liming. Learned counsel for the petitioner, at this stage of the hearing, requested that he may be allowed to amend the petition so as to incorporate facts showing that the claim is not time-barred. Though I am not inclined to accede to this belated request, I do not wish to rest my conclusion on this ground. Even otherwise, I think, the petition deserves dismissal.

4. Both from the petition as well as the replies, it is clear that the orders for the machinery were placed on the petitioner not by the first respondent company but by the National Small Scale Industries Corporation (NSIC), New Delhi (which has been subsequently added as a respondent to the petition). About ninety per cent. of the price of the machinery was also pain by the NSIC, the order on the petitioner had been placed by the NSIC at the request and on behalf of the respondent company in pursuance of an oral agreement which was subsequently incorporated in the agreements dated June 2, 1981, December 31, 1982, and January 13, 1983, into the details of which it is unnecessary to go into now. On the other hand, according to the respondent company, it was nowhere in the picture at the time the order was placed and its arrangements with the NSIC were much later. But the details of these disputes are irrelevant. The petitioner was admittedly not aware of the arrangements between the respondent company and the NSIC. Its dealing with the NSIC for the supply of machinery was only as between principal to principal. There are no allegations in the petition which show how the respondent company comes into the picture at all, the allegation that the order was placed by the respondent company being patently incorrect. In the rejoinder also, the petitioner claims, not that the NSIC was the agent of the respondent company, but that there was a joint venture between the two. I express no concluded opinion regarding the liability of the respondent company to the petitioner if NSIC be treated as the undisclosed principal of the respondent company in the transaction or the respective liability of the NSIC and the respondent company in case it was a joint venture. Suffice it to say that the existence and extent of such liability is a matter of controversy and genuine dispute. That apart, both the NSIC and the respondent company have contended that the petitioner was guilty of the breach of the terms of the contract such as that the petitioner had not properly packed the same before dispatch or sent an engineer for its installation and that in the circumstances, no question of payment was guilty of the breach of the terms of the contract that the petitioner was guilty of the breach of the terms of the contract such as that the petitioner had not properly packed the same before dispatch or sent an engineer for its installation and that in the circumstances, no question of payment of the balance price could arise. The respondent company has also added that the machinery had been badly damaged in transit and that a claim for damage has been lodged with the insurance company but this is denied by the petitioner or even in the rejoinder which would show that the petitioner was indisputably and clearly entitled to the payment of the full purchase price and that too, by the defendant. It seems to me that this is a case in which there is a bona fide and substantial dispute as to the liability of the respondent company to pay the amount which forms the foundation of the petition. I, thereforee, think that this petition should be dismissed and order accordingly. I, however, make no order regarding costs.


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