9911796707
TMI Blog2012 (8) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... which the winding up of the company was prayed for. 3. Pursuant to purchase orders placed by the respondent herein namely the above company, during the period on and from May 24, 2008, till February 5, 2009, the appellant-petitioning creditor agreed to manufacture, sell and supply and did supply substantial quantity of Heat Resistant Cast Iron Castings (hereinafter in short "HRCI") for construction, erection and installation of Rotary Hearth Furnace. The aforesaid agreement for purchase and sale and supply of the said materials were embodied in the number of the purchase orders themselves. The relevant terms and conditions for sale and supply are as follows : (i) The said materials must conform to the stipulated percentage of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he materials. Materials will be delivered after receipt of final inspection are made from Wesman. 2. For HRCI castings we will provide Wesman with integrally cast Test Lugs for testing to be carried out by Wesman at our own cost. Alternatively if required then we will provide Wesman with Material Test Certificate from the Government Registered Testing Laboratory. 5. In terms of the said contract the above materials were sold and delivered and at the instance of the petitioning-creditor at the site of the company called M/s. ISMT Ltd., at Pune. It appears in the acceptance of purchase order it is mentioned that goods are to be delivered to the said ISMT Ltd., at Pune. After manufacturing of the said materials the test of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have incurred expenses additionally. After adjusting of the dues of Rs. 24,81,177 and sum of Rs. 5,000 and odd has become due and payable on account being taken. The aforesaid amount has been demanded on account of the balance amount of liquidated damages aggregating to Rs. 30,09,529. 7. According to the petitioning-creditor the aforesaid dispute is not a bona fide one as their purchase from third party without giving any chance of replacement in terms of the guarantee clause, the claim for alleged suffering of liquidated damages amounting to Rs. 30 lakhs and odd is not tenable under law. 8. In the affidavit the company asserted that it was specifically made known to the appellant/petitioning-creditor the aforesaid materials were meant fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, there is a patent breach on the part of the company and their failure is sought to be imputed to the petitioning-creditor. 12. Mr. Gupta, learned counsel appearing for the respondent contends that the learned trial judge is perfectly justified in passing order impugned which does not call for any interference. It will appear from the records that the goods were not of standard quality of stipulation as it was found by the independent expert after delivery was effected. It is true at the time of delivery of the materials his client relied bona fide on the test certificate furnished by the petitioning-creditor. The company did not doubt bona fide as to quality and the acceptance was made based on visual inspection of the size of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such dispute must have correlation to the transaction between the parties in normal circumstances and if the transaction is of the nature of principal to principal third party's dispute in connection with the goods cannot legally be brought before the original supplier. On perusal of the materials it appears to us that there was no privy between ISMT and the petitioning-creditor in relation to the transaction. According to us, when the company has accepted upon inspection of the goods and on being satisfied by the test report the company has to accept the same. It is true the sub-standard quality of the materials are said to have been accepted but then under the guarantee clause the petitioning-creditor was agreeable to replace the same. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said to be bona fide to resist winding up petition. We are of the considered opinion that the relationship between the company and its customer has nothing to do with the petitioning-creditor once it is accepted upon compliance of the terms and conditions. Of course, the petitioning-creditor cannot be relieved of the liability arising out of the guarantee clause provided the appellant is not prevented from performing its part of the guarantee clause. 19. We are of the view prima facie of course that the company cannot take advantage of its own breach and withhold the balance amount of Rs. 24 lakhs on the plea of loss and damages having been incurred. 20. The judgment cited by Mr. Gupta in this case as quoted above are factually differen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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