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M/s Venus Petrochemicals (Bombay) Pvt. Ltd. Versus M/s Vannix Industries Pvt. Ltd.

Petition for winding up of the respondent-company - unable to pay dues - respondent-company has admitted to pay the outstanding liability - Held that:- On perusal of the E-mails, it is irresistibly concluded that the respondent-company had failed to pay the admitted liability. In view of the categoric admission of the respondent-company, this Court is made to believe that the respondent-company is unable to discharge the admitted liability and thus, the present petition is liable to be admitted. .....

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opal Sharma, learned counsel appearing on behalf of the petitioner submits that the petitioner company was approached by the respondent-company for purchase of chemical materials known as Mosstanol-L and Mosstanol-120 and accordingly, the respondent CP No.93 of 2013 -2- company placed the purchase order. He further submits that respondent-company had been purchasing the materials from the petitioner-company since 2007. The copy of the purchase order dated 09.07.2012 to 13.09.2012 have been place .....

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is still outstanding. He further referred to the telephonic reminders and as well as E-mail dated 29.10.2012 sent by the petitioner-company to the respondent-company and the said E-mail has been duly replied by the respondent-company, whereby they have acknowledge to pay outstanding amount and, therefore, respondent-company has admitted to pay the outstanding liability. He further submitted that the legal notice (Annexure P-7) dated 11.03.2013 was sent to the respondent-company through registere .....

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ost the potential business and further as that the respondent-company did not raise the dispute with regard to the quality of the product, at any point of time, till the receipt of the legal notice. Mr. Pardeep Sharma, learned counsel appearing on behalf of respondent-company submits that the petition is not maintainable in the eyes of law as no cause of action has accrued in favour of the petitioner-company, much less, the relief sought in the present petition is not supported by any documentar .....

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representation of petitioner-company, the respondent-company has used aforementioned material in the painting industry in a span of 3-4 months, but the respondent-company started getting the complaint from the market/dealers regarding the quality or material and the petitioner-company through various Emails informed about the defective material and in this regard has drawn the attention of this Court to Annexure R-2 dated 19.11.2012, 21.11.2012, 21.12.2012 & Annexure R-3 dated 27.11.2012 and .....

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referred to the judgment of High Court of Gujarat in Asim Pharmachem Industries Versus Nilsin Ultrachem Ltd. decided on 06.08.2012 to contend that Company Court should not pass a winding up/admission order in a routine, where it has prima-facie been proved that the petition has been filed with a view to harass the respondent-company. Another judgment of this Court has been cited i.e. Tata Davy Ltd. Versus Steel Strips Ltd. 1994(3) R.R.R. 84 to contend that where the respondent-company has raise .....

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upon following case law to contend that where the respondent company is unable to pay admitted liability, the petition should be admitted and wound up:- i) 1996(86) Comp Cas 703, Chhabra Steels Strips (P.) Ltd. Vs. Haspa Wheels Pvt. Ltd. ii) 1991(1) R.C.R. (Civil) 146, G.K.W. Ltd. Vs. Shriram Bearings Ltd. iii)2014(182) Comp Cas 276, Rama Peer Traders Vs. Scot Innovation Wires and Cables Pvt. Ltd. iv) 2007(141) DLT 378, Deutsche Homopathie-Union DHUArzneimittel GMBH & Co. Kg Vs. R.K. Import .....

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n has been laid down by Hon'ble Supreme Court of India 1971 (3) SCC 632 in M/s Madhusudan Gordhandas & Co. Versus Madhu Woollen Industries Pvt. Ltd. In order to answer such question, it would be apt to refer to various documents. The foremost documents scanned is purchase order. One of the copy of the purchase order is extracted hereinbelow:- VAANIX Purchase order P.O. No.:VIPL/033/2012-13/VPPL Date: 28.08.2012 M/s Venus Petrochemicals (B) P. Ltd. 401-403, Zafryn Chambers, Opp. Sewri Rai .....

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m. Jaipur TIN 08904201370 Terms & Conditions Excise : CVD 8.54 & 8.04 respectively. Sales Tax : 2% Against Form- C Delivery period : Immediate Delivery : Ex-Kandla Payment : 60 days from the date of delivery. Special Term : If goods not found as per specification, goods should be taken back immediately by your own cost. Suman Deepak Sondi VAANIX INDUSTRIES PVT. LTD. On perusal of the aforementioned purchase order placed by the respondent-company to the petitioner, it is evident that the .....

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07 onwards is in same fashion & similar to the one extracted above. In every purchase order, the respondent-company has ordered for Mosstanol-L and Mosstanol-120. It is basically the nomenclature being used in the subject IPA/Butanol being Mosstanol-L and Mosstanol-120 substitute and respondent-company had been using such material since time immemorial. Had respondent-company being misrepresented, there would not be occasion for the respondent-company to perpetually placed an order of the af .....

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ged complaint was taken halfheartedly. For the sake of brevity, E-mail dated 19.11.2012, 21.11.2012, 27.11.2012 & 21.12.2012 is extracted hereinbelow:- From: Shree@vaanix.com Sent: 19 November 2012 12:53 To: harish@venuspetrochem.com Cc: suman@vaanix.com Subject: Excess Material Dear Mr. Harish As par telephonic discussion with our MD. Sir with you. We have found your material lying with us from our all India branches are as given below:- 1. Mosstanol-L 56354 Kg. 2. Mosstanol-120 24170 Kg. S .....

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is to be handled by u and it is ur responsibility and look out. But still as considering ur position, we are ready to support and accommodate by agreeing to accept the payment in parts. So kindly arrange to release of our total o/s of ₹ 77,83,191 in small lots of 5-10 lacs every week so that our finance is not blocked totally and at the same time u r also not burdened with such big amount release in one go. Further also take note that our new Mosstanol price is on higher side with differen .....

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- From: <shree@vaanix.com> To: harish <harish@venuspetrochem.com> Cc: <suman@vaanix.com> Sent: Monday, November 19, 2012 12:53 PM Subject:- Excess material Dear Mr. Harish As par telephonic discussion with our MD. Sir with you. We have found your material lying with us from our all India branches are as given below:- 1. Mosstanol-L 56354 Kg. 2. Mosstanol-120 24170 Kg. So your are requested to collect your material from our ends. Regards Shreeniwas Singh From: Navin Chandra Jha .....

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and the balance could be paid in certain time frame. I am again disappointed for the circumstances and sorry for the outcome, but am sure that both of us can sort this out. Best Regards Navin Navin Chandra Jha Managing Director Vaanix Industries Pvt. Ltd. 401, Bestech Chambers, Hotel Raddisson Suites, B-Block, Sushant Lok-I, Gurgaon-122002 Cell- +91 9871339996 admin@vaanix.com www.vaanix.com From: admin {admin@vaanix.com} Sent: 21 December 2012 14:50 To: harish Cc: Suman Jha; atul; navinjha@hotm .....

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ther industries like ink and paint, the result of which the liquidation has started and hope we get these liquidated by January. As being discussed we have some technical issues and we are working to resolve this by 10th of January and hereafter we start executing your payment, we hope to execute approx. ₹ 25 lac in January and balance in Febraury. I understand the gravity of the situation and sincerely thank you for your co operation. Best Regards, Navin On 12-Dec-2012, at 2:17 PM, harish .....

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standing. Kindly arrange to do the needful accordingly. Regards Harish Nayak Venus Petrochemical (B) P. Ltd. 401-403, Zafryn Chambers, Opp. Sewri Railway Station, Sewri Koliwada Road, Sewri (East) Mumbai-400015, Maharashtra, India Tel: +91-22-61463100/61473100 DID: +91-22-61473113/61463160 FAX: +91-22-61463162/24163193 Email: harish@venuspetrochem.com web: www.venuspetrochem.com <Mosstanol 120 spec.pdf> <vaanix-cform-os remainder.pdf> Desclaimer: The information contained in this mes .....

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sed upon the facts on each case. Judgments cited do not support the stand of the respondent-company. However, in the instant case in view of categoric admission of the respondent-company suffered in the year 2013, this Court is made to believe that the respondent-company has admitted the liability to pay the debt. In order to lend support of the aforementioned observations, now I proceed to refer to the E-mails written by the respondent-company to the petitioner-company, wherein the respondent-c .....

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jha@hotmail.com ; Atul Thakkar Sent: Monday, February 04, 2013 4:59 PM Subject: RE: Payment Dear Mr. Harish/Mr. Atul Really understand your follow-up but we did'nt have any explanation who can satisfy you. After Mr. Atul Gurgaon visit on dated 08.12.2012 we tried to sell your 40T product which was lying at our stock science August, 2012. We are waiting for payment from our buyer, meanwhile we are also working with our Banker to enhance the existing limit, once it is done and whenever money c .....

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d and accommodated u to our maximum extent but now we are in dire financial need as we are getting default in our commitment and we are facing lot of financial crunch. So u have to arrange for clearance of our longdue o/s on priority basis as we are in dire need. So kindly confirm the payment schedule so that we can plan accordingly. Regards Harish Nayak Venus Petrochemicals (B) P. Ltd. 401-403, Zafryn Chambers, Opp. Sewri Railway Station, Sewri Koliwada Road, Sewri (East) Mumbai-400015, Maharas .....

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