Karnataka High Court
M/S.Iba Health (India) Private Ltd vs M/S.Info Drive Systems Sdn Bhd on 21 October, 2009
Bench: D.V.Shylendra Kumar, L.Narayana Swamy
that of Certain commission due to the
the respondent company who is now
before us, has entered into a compromise
the suit itself was not one for recovery of any
.V__"1noney and in terms of the compromise on a future
THIS APPEAL IS COMING ON FOR ADI\/{ISSiON
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appeal by a Company order passed by the learned a petition filed u/s 433(e) (f) the Companies Act by another s. Info» Drive Systems as Bhari Information and who incidentally of the present appellant colnpanyl service on commission basis.
2; Petition was presented on the contingent receipt of service on payment of a price by the a/ C I5t"'is"i'inot inflwdispute that both the parties filed VC"oin:proinise":..Petition dated 18.03.2006 before the ''.City Judge, Bangalore, in o.s.se55/2005. _ Petition make it clear that the defendant [Respondent 'ehe:i'ein) agreed to provide, report once in two months to the plaintiff of the invoices raised by the defendant H on M/s. Solutions Protocol Private Limited, Malaysia, "4. On the allegation that the respondent~CoInpany committed breach in making payment of the commission to the petitioner, a civil in o.s.9s55/2005 was filed by the PetitionerpV,,b_efore"thee. City Civil Court, Bangalore, V' injunction restraining the re_,s.pondent'liereein from!' C"
entering into any contract for:=,transféir'4'o'f of the Company either in favour of M/ Ltd, Australia or any '~--.ot'her if during the subsistence :of--uV,the"'--~Ij)eed "'of.,.S.¢:}ttlement dated 19.12.2003.' "A"maxid;atVoi'yginj'u,nction was also sought to direct theAHre:spon_dent"'hereiyn--V"to furnish the details of paganjiznt M/S.Solutions Protocol; £A:iBl*i_dV. of HICT package one contract, into a compromise by dang a_Conipromise.d"'Petition dated 18.3.2006 in the said zsuuit-as The suit was decreed in terms ofthe" Comprornised Petition. Paragraphs 2, 3 and 5 of the said Compromise V Cfaeievvd n_el4:ear_' by looking at the undisputed ._ 'ai_nde'rsta_ridin"g reached between the petitioner and 'the gresp-ondent, right from the Co--operation if that the respondent has undertaken to pay to the petitioner as per the entitlement of the petitioner and as per the obligation undertaken by the defendant 6 pertaining to the transactions under HICT package-1 contract.
"9. The defendant also agreed to make"~._ffu.tu.re payments to the plaintiff as per _ entitlement and as per the defendar_1t_'_sv_"'~-obligationusl K under the Deed of Settlement''« Compromise Petition (underlining._A_'suVppllied}.t.'._
5 of the Compromise Petiltion referred 1to--.thVe.Vl3faet that the defendant has right of the Plaintiff in respect to M/s IBA Health Private regarding the understanding," enteredf1'§:¢'taz¢efi'th§%h. Clause--6 of the Comp131om;se_. the compromise shall be k pages; and shall not be eonstruedfas clfi-::atirigV"an eiieeutable decree.
"IO. AIt__is pValso_.Ah:otdV_i'n:"dispute that pursuant to this compromise' sums were paid by the 1fespo_ndent--C'0m.pany to the plaintiff. It is thus prirna Agreement till the filing of the Compromise Petition under the Deed of Settlement. As already stated. under the Deed of Settlement. the payment to be
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earlier in the suit filed by the Petitioner Company had settled the matter and suit had been disposed of in of the compromise entered into between the _ such purpose, the iearned Company Judge it " ~ 00 parties to appear before the Bangalore 15.10.2009. It is in this background 'present presented.
6. Appearingpon behaii company, submission of learnexdolélenior Counsel is that the virtually jumped to the conclusion'; petition warranting admission even_dwithout;_any" material to support such a View urithtpcertain docurneivits referred to and relied upon by the 'compan,y'~ipet:iti.oner particularly Annexures~J1 to J9, had on the transactions between the _'7"epo,.,,??"rt§es norfihad anything to do with the terms of the between the parties; that AnneXures~J1 to J9 0' V-Vftcouldllhave never constituted any worthwhile material even 'V"'*.t_o;'vexainine the company petition within the scope of ~'uSeetion 433(e) & (fl r/W Section 439 of the Act, that the (Vt finding based on Annexure-J1 to J9 is nothing short of a perverse finding and though the matter is referredvggtofithe Mediation Centre for conciliation, neverth_e'less.V'_~ _ Company Petition having been admitted and ll * 2 Company Petition having a very serion-st': deleteifiouispl consequence on the company anduas the law'v:decla_red3 by * the Supreme Court: the very of petition for winding up its inability to pay its debts or 'matter which can be adjudicated reason the present appeal is filed. passed by the learned Company Judge --petition for examination. 7_/.By_.lA'dravving....,a_ttention to Annexure-J1 and J2 si:b1nis'aiVo1i._V of Sriflolla is that the documents on the face i..__of it reveal no'tr_a;nsaction involving the appellant company, no payments had been made nor any service received Iflilthyelllappellant company for its own benefit, that some C. .payrnlents had flowed in terms of AnneXure--J1 to J9, the V .,appellant company being not a party at all, they could have no bearing or relevance to the appellant company and 14 how one outsider was controlling the whole thing while was not having the name of the appellant company and-._gon such circumstances what was noticed by the..__'4lea1*n'ed~ V. company Judge being prima facie material method being resorted to by the about the transactions being not bonallfide ant1.'t1"1erefofe the learned Company Judge it the petition.
13. We do notsee :'illega_1ity in the impugned Ordiéfu Ompany Judge' more so, had approached the Court for 'Wind up the affairs of the appellant cornpariy on grounds as noticed earlier, V donot ahy..__.n1ateria1 in this appeal even for admission a_nd'_'it.pisaccordingly dismissed at the admission g>gwvp$tage.'_ A Sd/~ JUDGE Sd/--
IUD A.KD"'