P. K. BAHRI, J.
(1) THIS petition has been filed under Section 433 read with Section 434 of the Indian Companies Act seeking winding up order of the respondent company.
(2) THE facts, in brief, are that the petitioner Is having his business under the name and style of M/s. Pieco International Engineering Company and. the respondent company had placed an order on the petitioner company for supply/installation of LT Panels vide its order dated January 25, 1991. These installations of LT Panels were to be made at respondent's hotel at Lucknow which was under construction.
(3) ALTHOUGH the first delivery of the LT Panels was to be made by February 20, 1991 and the same was to be commissioned latest by February 28, 1991, yet it is the case of the petitioner that on account of late supply of approved drawings, the supplies could not be made and ultimately the petitioner company raised a bill/invoice on July 3, 1991 to the tune of Rs. 4. 19 lakhs towards the supply of 11 LT Panels alongwith 48 Distributor Switches and 60 MV Danger Plates which were delivered to the agent of the respondent and necessary receipt was Obtained on August 23, 1991.
(4) IT is averred that respondent made part-payment of Rs. 50,000. 00 and the balance amount of Rs. 3,69,000. 00 is still due from the respondent company which the respondent company failed to pay despite service of statutory notice under the Indian Companies Act.
(5) THE respondent company has contested the petition and has pleaded that the time regarding the supply of the goods was the essence of the contract and it is the petitioner who delayed the delivery of the goods and had raised the bill on 3rd July 1991 when in fact the goods were supplied on 21st August 1991. It is averred that Rs. 50,000. 00 was paid as a goodwill gesture and only a sum of Rs. 1,30,000. 00 was due in respect of the impugned bill which the respondent company was willing to pay in case the petitioner was to renew its bank guarantee in terms of the contract and as the petitioner failed to renew the bank guarantee, so this payment also could not be made.
(6) IT is also averred by the respondent that it was the petitioner who failed to collect the drawings from M/s V. S. Kukreja and Company, the Project Consultants of the petitioner in time. It is also averred by respondent company that main LT Panels which were liable to be supplied in the first supply were not delivered and the supplies made by the petitioner were not in accordance with the contract as the articles supplied by the petitioner could not be installed in absence of supply of main LT Panels and the supplies also were not in accordance with the invoices Inasmuch as various components like ELCBS, HRC Fuses, etc. were not supplied. One of the pleas raised in the reply is that the petitioner had served the statutory notice even before making the supplies in question and had withdrawn that notice which facts have been suppressed in the main petition.
(7) IN the rejoinder affidavit, the petitioner had, besides reiterating his pleas, has controverted that delay in supply has ocurred on the part of the petitioner or any Insufficient material was supplied. It is also asserted that the previous statutory notice which was given pertained to the payments due to the petitioner in another contract for supply of HT Panels and the dispute regarding the payment regarding the supply of HT Panels on an earlier order was settled and thus, the notice was withdrawn and the present petition is based on a subsequent statutory notice pertaining to the non-payment of the dues in respect of the supplies made on the basis of the contract regarding supply of LT Panels. It is also asserted by the petitioner that the supplies were made and goods were checked by the agent of the respondent and no shortages were indicated by the respondent at any time and the LT Panels supplied were in accordance with the order and the respondent company has failed to pay the amount of the said bill and thus, the winding up order is required to be made in the present case.
(8) I have already noticed the various terms of the supply order. It is indeed not in dispute that supplies were not affected in accordance with the time schedule given in the terms of the delivery order. However, the respondent company, having accepted the supply of the goods on August 21, 1991 without any objection, now. cannot turn around prima facie and raise any dispute regarding supplies being made beyond the schedule fixed in the supply order.
(9) IT Is also pertinent to mention that the supplies were received by the respondent company through its agent without any objection being raised that the supplies were not in accordance with the order or any components were not supplied alongwith the LT Panels. So, prima facie, it cannot be said that any bonafide dispute on any substantial ground is being raised by respondent company with regard to the supply of the goods as per the invoice/bill dated 3rd July 1991.
(10) IT Is, indeed, not disputed that the petitioner had given a bank guarantee in the sum of Rs. 2. 00 lakhs which was to be valid for three months in accordance with the terms of the contract but as the supplies were made on August 21, 1991, the petitioner was, in my view, duty bound to renew the bank guarantee and from the record it is clear that the bank guarantee was renewed by the petitioner company till 24th October 1991. According to the terms of the contract, the respondent company was legally bound to release 70% of the payment on pro-rata basis on receipt of the goods in satisfactory condition at the site and the - advance amount was to be appropriated at that stage itself and the 10% amount was to be released after commissioning against performance guarantee on an equal amount valid for a period of one year. So, according to the terms of the contract, the respondent company ought to have released 70% of the payment in respect of the supplies already made and admittedly such payment was not released and only a sum of Rs. 50,000. 00 was paid by the respondent company. It is evident that this payment was to be released soon after the receipt of the goods i. e. from 23rd August 1991 but the amount was not released, although the bank guarantee was twice renewed by the petitioner.
(11) THE learned Counsel for the respondent has argued that the bank guarantee was to be renewed by the petitioner for completing the total supply of the goods agreed upon and the second part of the supply was to be made in accordance with the terms of the contract on the dates mentioned therein and the total contract was to be completed by April 30, 1991 and as the first phase delivery was made belatedly on 21st/23rd August 1991, the petitioner was supposed to make the delivery of the balance LT Panels also within eight days of making first delivery of the LT Panels and the petitioner company never made the delivery of the balance LT Panels in accordance with the order and the bank guarantee was to cover both the supplies and the petitioner having not renewed the bank guarantee for a period of three months from the date of the first supply at any time, thus, there exists bonafide dispute based on substantial grounds for not releasing the payment of the supplies made initially by the petitioner. .
(12) IT is significant to. mention that 70% of the payment was to be made on pro-rata basis meaning thereby as soon as the supply of the first phase was to be received, the 70% of the amount was to be released by the respondent company and after the supply of the second phase was to be made, may be within eight days of the first supply, the 70% of the payment was to be released again in respect of the supplies to be made in the second phase. It is contended by learned counsel for the respondent that as the delivery of the second phase of supply was never made, the respondent company was not liable to pay any amount to the petitioner and thus, there exists a bonafide dispute between the parties and hence this petition is not maintainable.-
(13) AS already discussed above, time could not be treated to be the essence of the contract inasmuch as even after the expiry of the time schedule fixed in the delivery order, the respondent company without any objection had accepted the supplies of the goods which were to be made in the first phase and the bank guarantee was in force given by the petitioner and it was incumbent upon the respondent company to have paid 70% of the bill in respect of the supplies made in the first phase. As the respondent company did not make such payment, it is evident that the petitioner was not bound to make supply of the goods in the second phase. In case the petitioner had not renewed the bank guarantee at all, then it could be said that the respondent company was not liable to release the payment but in the present case, it is evident that the bank guarantee stood renewed till 24th October 1991 and in case the respondent company had released the payment of 70% of the 'bill amount in time, the petitioner could have made delivery of the balance goods also and the bank guarantee already furnished upto 24th October 1991 would have covered the supply of the goods to be made in the second phase as well. So, prima facie, I come to the conclusion that respondent company had neglected to pay its debt in respect of the supply of the goods made on 23rd August 1991 despite statutory notice. Hence, the present petition is liable to be admitted. The amount due from the respondent company in the supplies already made is Rs. 3,69. 000. 00.
(14) I admit the petition and direct that the citations be published in the newspapers 'indian Express', 'veer Arjun' and Delhi Gazette. However, such citations would be published after the expiry of a period of one month and In case within this period of one month the respondent company is able to pay the amount mentioned above to the petitioner, then the citations shall not be published and the petition will be dismissed as satisfied. But in case the payment is not made within one month, the citations shall be published and matter shall be listed on 18th July 1994.