1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.881 OF 2009 Krauss Maffei Technologies GMBH ....Petitioner V/s. M/s.Anant Electronics Pvt. Ltd. ....Respondent Mr.Simil Purohit and Mr.Darshan Mehta i/b M/s.Dhruve Liladhar & Co. for the Petitioner. Ms.Raehna Kapasi i/b Pimenta Kapasi & Co. for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 21ST JUNE, 2010. P.C. :- 1. This is a petition for winding up of the Respondent company on the ground that the company is unable to pay its debts. According to the Petitioner, the company is indebted to it in the sum of 2,39,956=78 Euros together with interest at 18% p.a. thereon from the date of the Petition till payment. 2. The claim arises on account of the material sold and supplied by the Petitioner to the company under and in terms of three invoices all dated 30.11.2006 in the aggregate amount of Rs.8,00,000 Euros. In the petition after referring the invoices, it is stated that on account payments had been made from time to time leaving the amount claimed as balance. Thus over 70% of the consideration has been paid. In the petition, the Petitioner referred to its notices demanding payment commencing from 2 11.7.2008 for the balance consideration. 3. The affidavit in reply sets out in greater detail what transpired between the parties in respect of the said supplies. There appeared to have been several disputes between the parties as regards the quality of the goods supplied. In fact it appears that the original payment scheme was deferred twice on account of the problems in running the machinery supplied by the Petitioner. I stated earlier that in the petition, notices of demand commencing from 11.7.2008 have been referred to. In the affidavit in reply, the company has referred to several letters and e-mail messages prior thereto raising various grievances regarding problems faced by it in respect of the material supplied by the Petitioner. There are not less than fifteen such messages prior to 11.7.2008. The grievances pertain to delay in replacing the defective material ; particulars of the defects including drop in vacuum, central handling positions not having reached required production requiring the machinery to be stopped frequently, defective sensors, defects in starting the machinery, rejection, defective scanners and leakage in sprue brushes. 4. Mr.Purohit invited my attention to an e-mail letter dated 11.1.2008 from the Respondent company regretting its inability to make payment due to the recession in the market. He submitted that this was the real cause for the company having failed to make payment of the balance consideration. 5. However, as rightly pointed out by Ms.Kapasi, the learned counsel appearing on behalf of the Respondent company, even thereafter the defects and problems continued. This is evident by letters and e-mails 3 addressed by the company to the Petitioner even after 11.1.2008. It is for this reason, she submitted, that the company refused to make payment. 6. Mr.Purohit submitted that even assuming that the goods were defective, the company had itself in the affidavit in reply restricted its claim to 50,000 Euros. That however, would not be a fair reading of paragraph 27 of the affidavit in reply dated 4.1.2010. It is obvious that the claim was for the loss suffered but without admitting the liability to make payment for the defective material. 7. In the circumstances, there are several disputed questions of fact which cannot be entertained in a winding up petition. 8. In the circumstances, the Company Petition is dismissed.