-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.187 OF 2008 In the matter of winding up of Metalman Industries Limited Hero Exports : Petitioner ... Mr.Gaurav Joshi i/b. Mr.Anil T. Agarwal for the petitioner. Ms Nafisa Ahmed with Mr.Shailesh Shah i/b. Khaitan & Jaykar for the respondent. ... CORAM : S.A. BOBDE, J. DATE : AUGUST 29, 2008. P.C. 1. This is a petition for winding up of the company for non-payment of terminal handling charges. 2. According to the petitioner, the company i.e. Metalman Industries Limited supplied goods in pursuance of two purchase orders placed on them by the petitioner for supply on F.O.B. basis. The petitioner’s case is that since the purchase orders were placed on the company on F.O.B. bass, the company was liable to pay terminal handling charges. Since they did not pay the charges, the petitioner paid those charges and is, therefore, entitled -: 2 :- for reimbursement of those charges. The petitioner served a statutory notice which, according to the company, was duly replied. However, the petitioner denied having received the reply. The learned counsel for the respondent submitted that the reply to the statutory notice was communicated by way of fax. However, the receipt produced by the respondent does not appear to be reliable. It shows that a document of 12 pages was sent to the recipient and the reply to the notice produced by the respondent is of only one page. Moreover, it can’t be ascertained in these proceedings whether the reply was sent on the number referred to in it since Mr.Joshi points out that such a print out can be obtained even otherwise and the phone number of the recipient which is displayed on the receipt normally comes from the fax machine and not from the telephone line. Moreover, Mr.Joshi relies on the affidavit filed by the Advocate who is the alleged recipient of the reply sent by fax that no such reply was received by him. Hence, it is not possible to adjudicate whether such a reply was given or not. 3. On merits, according to the petitioner, the respondent has in the reply, which the petitioner has not received, not denied the contract between the parties, viz., the fact that the purchase order was placed on them and that the order was for delivery of goods on F.O.B. It is a -: 3 :- fact that there is no such categorical denial in the reply. However, the learned counsel for the respondent points out from the proforma invoice exhibited along with the petition itself that the party on which the purchase orders were placed was Amulya Exports Limited and not the company which does business by the name of Metalman Industries Limited. According to Mr.Joshi, these are sister concerns and the respondents have not seriously disputed that they supplied the goods. However, there seems to be a serious dispute raised by the respondent about the party with whom the purchase orders were placed. It can’t be presumed that the purchase orders containing the relevant terms under which the petitioner’s claim, were placed on the respondent merely because the respondent supplied the goods, particularly when the proforma invoices show that the orders were placed on Amulya Exports Limited. In these circumstances, it is not possible to conclude that the respondent has admitted that the purchase orders in question were placed on them and they have supplied the goods in pursuance of those orders on F.O.B. basis. In fact, admittedly, there is no separate contract of purchase which shows that the petitioner placed it on the Company i.e. Metalman Industries Limited. Having regard to the dispute, it is not appropriate to admit this petition for winding up which is, therefore, dismissed. -: 4 :- S.A. BOBDE, J.