((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.388 OF 1996 WITH COMPANY PETITION NO.389 OF 1996 Ramesh Airekar (Prop. Kailash Building Material Suppliers) Petitioner versus Kasha Syncotex Limited Respondent Ms.N.V.Parikh for petitioner. CORAM : A.M.KHANWILKAR, J. DATE : 09th January 2008 PC : 1. These petitions are filed under sections 433 and 434 of the Companies Act praying for winding-up of the respondent company. The petitionr’s claim is based on goods sold, delivered and supplied to the respondent company from time to time as demanded by the respondent company in the form of river sand, rubble stone and other building materials etc.. According to the petitioner, at no point of time, the respondent raised any dispute regarding quality, quantity or price of the goods supplied. The ((-2-)) MST petitioner asserts that as the amount remained outstanding in spite of repeated reminders, the petitioner gave statutory notice to the respondent on 7th June 1996. The respondent replied to the said statutory notice by advocate’s letter dated 22nd June 1996. According to the respondent, no goods were directly supplied to the respondent by the petitioner. 2. In substance, the stand of the respondent is that there is no legal outstanding dues payable to the petitioner. In paragraph 3 of the reply it is clearly stated that the factual position is that the respondent engaged a civil contractor by name SPM Enterprises for carrying out civil construction work at the factory site. The contractor was responsible for procurement of necessary material and execution of work. It is also stated that the contractor procured the material and the respondent reimbursed the contractor for such material cost. In other words, there was no lis between the petitioner and respondent regarding supply of goods to the respondent. 3. As the amount was not paid by the respondent ((-3-)) MST in spite of statutory notice, the petitioner has approached this Court by way of present petition. The respondent after entering appearance in the present proceedings has filed reply affidavit reiterating the stand taken in the the reply to the statutory notice. 4. Having considered the submissions canvassed on behalf of the petitioner I am inclined to dismiss this company petition. That is so because the petitioner has not produced any invoice raised in the name of respondent company. The petitioner has also not produced any acknowledgement by the respondent company about delivery of goods to the respondent company by the petitioner. On the other hand, the respondent’s case is that the respondent had engaged contractor M/s.SPM Enterprises for carrying on construction work with whom the respondent had entered into contract and was liable to pay the construction cost to the contractor. If the petitioner had supplied material to the contractor, it was, therefore, a transaction between principal to principal. The contractor was not agent of the respondent so as to make the respondent liable to pay the amount towards the material procured by SPM Enterprises. ((-4-)) MST The petitioner, at best, can proceed or could have proceeded for recovery of dues against the contractor SPM Enterprises. The respondent cannot be made responsible for non payment of material costs by the said contractor who was incidentally engaged by it. 5. The petitioner relies on the credit note Exhibit-C which mentions the names of parties from whom the material has been procured by the contractor. That credit note is of no avail to the petitioner. It is issued by the respondent in favour of SPM Enterprises recognizing the fact that SPM Enterprises procured raw materials from different agencies and that amount was payable to the contractor SPM Enterprises. 6. As aforesaid, the relationship between the contractor SPM Enterprises who had undertaken the construction work of the factory site of the respondent company with the respondent was on principal to principal basis. The material supplied by the petitioner for facilitating such construction was to the contractor SPM Enterprises. The respondent cannot be liable for non payment of such material costs to the petitioner by the said contractor. ((-5-)) MST 7. Accordingly, the respondent has raised bona fide dispute; moreover there is no legal liability of the respondent to pay the amount in respect of the materials supplied by the petitioner to SPM Enterprises. 8. In the circumstances, this petition is dismissed. (A.M.KHANWILKAR, J.)