: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.751 OF 2008 ACC Calderys Limited (formerly . known as ACE Refactories Ltd.) ....Petitioner V/s. M/s.Mukund Ltd. ....Respondent Mr.Abhijeet Desai for the Petitioner. Mr.Prakash Shah i/b M/s.PDS Legal for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 23RD JANUARY, 2009. 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. 2. The Petitioner claims an amount of Rs.60,00,000/- together with interest on the basis of hundis. On this basis, the claim is unfounded for admittedly the Respondent is not a party to the hundi either as drawer or acceptor. 3. The Petitioner’s case is that the amounts were due and payable by the Respondent to A.C.C. Ltd. As the Respondent did not make payment of the amount, an arrangement was arrived at as evidenced by a fax message dated 9.3.2000 addressed by the Respondent to : 2 : A.C.C. Ltd. The fax refers to the Respondent’s dues and mode of settlement thereof. A.C.C. Ltd. had agreed to the Respondent arranging the sale of steel to its customers. The Respondent expressly agreed that all the dealings regarding receipt of the payment from the customers will be its responsibility. Pursuant thereto the goods were sold by the Respondent to the customers who accepted Hundis. Under the arrangement, the customers were then to pay the amount to A.C.C. Ltd. In this manner the dues of A.C.C. Ltd. were to be settled. . By a letter dated 23.3.2000, A.C.C. Ltd. informed the Respondent that it had finalized the transactions with one M/s.Silverline Bright Steel Ltd. authorizing them to lift steel worth Rs.60.00 lacs in two lots and that upon M/s.Silverline Bright Steel Ltd. lifting the material, the Respondent’s payment would be reduced accordingly. It appears that M/s.Silverline Bright Steel Ltd. however failed to pay the amounts to A.C.C. Ltd. 4. In view of the above fax message dated 9.3.2000 the Respondent was liable to pay the A.C.C. Ltd. the said amount. To reiterate, the fax message clearly stated that the Respondent will be responsible any way in this regard. : 3 : 5. There are unfortunately two bona-fide disputes which arise in the present case. Firstly, the Petitioner, prima-facie atleast, is not entitled to maintain the claim, A.C.C. Ltd. was entitled to maintain the claim. It was contended however that A.C.C. Ltd. and the Petitioner had entered into an agreement dated 29.9.2005, clause 2.1 whereof reads as under :- "2.1 Upon the terms and subject to the conditions set forth herein, as of the Effective Date, the Vendor agrees to sell, convey, assign and transfer the Refractory Business as a going concern on a slump sale basis to the Purchaser, and the Purchaser agrees to purchase, acquire and accept from the Vendor as of the Effective Date, the Refractory Business as a going concern on a slump sale basis, forever free and clear of all Encumbrances of any nature whatsoever and all the estate right, title, interest, easement, claim and demand whatsoever at law and in equity of Vendor in to, over or upon the Refractory Business subject to any increases, decreases or dispositions thereof as may occur upto and on the Effective Date in the ordinary course of business) unto and to the use of Purchaser together with all deeds, documents, writings, vouchers and other evidence of Vendor’s title exclusively relating to the Refractory Business and every part thereof for a lumpsum consideration as set out in Article 3.1 hereto payable in the manner set out hereunder." . The agreement does not specify that the above amounts claimed by the Petitioner pertain to the refractory business which was agreed to be assigned by A.C.C. Ltd. to the Petitioner. : 4 : 6. Further prima-facie again, the claim is barred by limitation. A.C.C. Ltd. never sought to enforce the claim against the Respondent. The alleged assignment is dated 29.5.2005. By this time, the claim was barred by limitation. This would be so, whether the claim is based on hundis or the said fax dated 9.3.2000 which constitutes a guarantee in favour of the A.C.C. Ltd. There is nothing on record to indicate that the bar of limitation was saved. 7. There may be little to be said about lack of commercial morality on the part of the Respondent company. If indeed the amount was payable to A.C.C. Ltd., subject to confirmation from A.C.C. Ltd. I would have expected the Respondent company to discharge its commercial obligation honestly. I regret my inability to amend the Petition in view of the above disputes. 8. In the circumstances, the Company Petition is dismissed.