THE HON'BLE MR JUSTICE V.ESWARAIAH and THE HON'BLE MR JUSTICE K.S.APPA RAO O.S.A.No.43 of 2011 JUDGMENT: (per the Hon’ble Sri Justice V. Eswaraiah) This appeal is filed against the order, dated 09-09-2011, passed in Company Petition No.241 of 2010 by the learned Company Judge, admitting the Company Petition filed by the respondent herein for winding up of the appellant company and directing to advertise in all the editions of the Hindu, English daily and Andhra Jyothi, Telugu daily regarding the admission of the Company Petition. The respondent herein filed Company Petition No.241 of 2010 under Section 433 (e) and (f) and 439 (c) of the Companies Act, 1956 read with Rule 95 of the Companies (Court) Rules, 1959, for winding up of the appellant company on the ground that it failed to discharge its liability to a tune of Rs.1,57,01,080/- due and payable to the respondent. A counter was filed by the appellant herein seeking to dismiss the said company petition, as it is not maintainable and after filing reply by the respondent herein, the learned Company Judge passed the impugned order admitting the Company Petition. Aggrieved thereby, the present appeal is filed. The undisputed facts are that the appellant, which is a Cement Manufacturing Company, intended to purchase an Electric Transformer of 25/30 MVA, 1323/6.9 KVA capacity, and approached the respondent herein, who is engaged in the manufacturing of power transmission and distribution equipments for supply of the Electronic Transformer. The respondent agreed to supply the Transformer for a value of Rs.1.80 crores plus applicable taxes and accordingly, a Purchase Order No.108000/74, dated 26-05-2008, was issued. The respondent herein supplied the Transformer to the appellant through M/s.Premier Transport Limited on 30-12-2008. The appellant herein paid a sum of Rs.45.50 lakhs towards part payment and remaining amount was not paid. Therefore, the respondent demanded to pay balance amount, for which, the appellant vide its letter, dated 15-10-2009, requested to grant some time. Later on, there were deliberations between the parties in pursuance of a mail, dated 07-07-2010 sent by the respondent herein to the appellant herein and the respondent has agreed to take back the Transformer. Accordingly, the parties have drafted the minutes of meeting, dated 21-07-2010, which reads as under:- “Minutes of Meeting held at Bheema Cements Ltd., Hyderabad Office on 21st July, 2010 regarding the outstanding payment against supply of 25/30MVA 132/6.9kv Transformer bearing Sl.No.D-8215 on 30th December- 2008, by Areva T & D India Limited. Attended by: For Areva T & D Limited For Bheema Cements Limited 1. Mr. Aruni Dasgupta 1. Mr. A.Uma Maheswara Rao 1. M/s. Areva has requested M/s. Bheema Cements Ltd. to clear all outstanding of Rs.15,701, 080/- (Rupees One Crore Fifty Seven Lacs One Thousand and Eighty Only), at the earliest as the same is outstanding for more than last 18 months. 2.M/s. Bheema Cements Ltd., has confirmed to release this outstanding payment within 20th August, 2010 i.e., within 1 month from the date of this Minutes of Meeting. 3. M/s. Areva has pointed out, that in case full payment cannot be made within 20th August, 2010; they shall take back the transformer. M/s. Bheema Cements Ltd., has requested for finalization of such return of transformer with mutual discussion only after 21st August, 2010 and within 30th of August, 2010”. For Areva T&D India Limited For Bheema Cements Limited” Thus, it is the case of the appellant herein that by virtue of the aforesaid minutes of the meeting, the transaction between the parties stood cancelled and the respondent is entitled to take back its Transformer. But, without taking the Transformer back, the respondent got issued a legal notice, dated 24-09-2010, demanding the appellant to pay balance amount failing which, winding up proceedings would be initiated, for which, the appellant issued reply stating that as per the minutes of the meeting, the respondent herein is entitled to take back the Transformer alone and that the winding up proceedings are not maintainable. Thereafter, the respondent herein got issued another notice, dated 26-02-2011 invoking the Arbitration Clause, as contained in the Annexure to the purchase order, appointing an Arbitrator to resolve the dispute. Learned counsel appearing for the appellant submits that the appellant has no legal obligation to pay balance amount and as per the minutes of the meeting, the respondent is entitled to take back its Transformer. Though there was some controversy that the appellant is not co-operating to take back the Transformer, during the course of arguments, learned counsel for the appellant submits that the appellant has no objection to take back the Transformer at any time. Learned counsel for the respondent submits that the respondent has no objection to take back its own transformer, however, subject to verification and recording the present status of the transformer. Both the counsel fairly admit that the subject matter of the minutes of the meeting cannot be given rise to cause of action for filing Company Petition, but the respondent shall be given an opportunity to take back its own transformer on the same condition, as it was supplied. Learned counsel appearing for the respondent agrees that the respondent will take back the Transformer on 23-12-2011 in the presence of the experts, having experience in the Transformers, of the appellant as well as the respondent. Both the experts shall record the present condition of the Transformer. It is needless to mention that if there is any difference of its condition, it is open to the respondent to work out its remedies in accordance with law. Accordingly, the O.S.A. is disposed of. Consequently, the Company Applications stand closed. There shall be no order as to costs. ________________ V.ESWARAIAH, J ________________ K.S.APPA RAO, J Date: 12-12-2011 Note: Issue C.C. in five days (B/o) Prv