Karnataka High Court
M/S Ganayantrika Systems Pvt Ltd vs M/S Infodesk Technologies Ltd on 24 July, 2013
Author: Dilip B.Bhosale
Bench: Dilip B Bhosale
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24th DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
COMPANY PETITION NO.141/2005
&
C.A.NO.1618/2006 IN COP NO 141/2005
BETWEEN
1. M/S GANAYANTRIKA SYSTEMS PVT LTD
NO.16, II A CROSS, SBI COLONY
3RD BLOCK, KORAMANGALA
BANGALORE 560034
REP. BY ITS MANAGING DIRECTOR
SHANKAR PANDIT
2. SRI SRIKANT PANDIT
S/O SHANKAR PANDIT
AGED ABOUT 50 YEARS
NO.55/B, 1ST MAIN ROAD
ELECTRONIC CITY, HOSUR ROAD
BANGALORE
3. SRI ANANT PANDIT
S/O SHANKAR PANDIT
AGED ABOUT 45 YEARS
NO.55/B, 1ST MAINROAD
ELECTRONIC CITY, HOSUR ROAD
BANGALORE
4. SMT CHITRA PHADNIS
W/O L.VASUDEVA RAO
AGED ABOUT 38 YEARS
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NO.404, SOBHA OPAL APARTMENTS
18TH MAIN, 39 TH CROSS
JAYANAGAR, 4TH T BLOCK
BANGALORE 560041 ... PETITIONERS/APPLICANTS
(BY SRI LOMESH KIRAN, ADV., FOR M/S INDUS LAW)
AND
M/S INFODESK TECHNOLOGIES LTD
A COMPANY INCORPORATED UNDER THE
COMPANIES ACT 1956
HAVING ITS REGISTERED OFFICE AT NO.1/1
MILLERS ROAD, BANGALORE 560052 ... RESPONDENT
(BY SRI H MUJTABA, ADV.,) PROPOSED RESPONDENT IN C.A.NO.1618/2006 IN COP NO 141/2005 PCS INFODESK POSITIONING SYSTEMS PVT LTD S NO.1-A, F-1 IRANI MARKET COMPOUND YERAWADA PUNE 411 006 ...IMPLEADING APPLICANT (BY SRI DHYAN CHINNAPPA, ADV., FOR M/S CRESTLAW PARTNERS) THIS COP FILED U/S.433(E) & (F) OF THE COMPANIES ACT, 1956 PRAYING TO WIND UP THE COMPANY M/S.INFODESK TECHNOLOGIES LIMITED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956.
THIS C.A 1618/2006 FILED UNDER RULES 6 AND 9 OF THE COMPANIES COURT RULES 1959 PRAYING TO IMPLEAD THE COMPANY MENTIONED IN THE APPLICATION AS RESPONDENT No.2 IN THE INTEREST OF JUSTICE AND EQUITY. 3
THIS COP & CA COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
PC:
The petitioners, in this company petition, under Section 433 (e) and (f) of the Companies Act, 1956 (for short "the Act"), seek winding up of the respondent-
company. Petitioners claim to be the creditors of respondent-company.
2. The respondent-company was incorporated in December 1994 as a Private Limited Company and was subsequently converted into a Public Limited Company. Mr.Pratap Hegde and Mrs.Vandana Hegde are the Promoters and Directors of the respondent-company. One PCS Info Desk Positioning Systems Pvt. Ltd. (for short "PCS') are the purchasers of software belonging to the respondent-company. The sale of software triggered the differences between the petitioners and the respondent- company.
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3. There was a loan agreement dated 20th July 2003 between petitioner No.1-M/s.Gnanyantrika Systems Pvt. Ltd. (for short "GYS") and respondent-company. As per the said agreement, not only petitioner No.1, but all four petitioners advanced a sum of Rs.1,35,19,202/- to the respondent-company. As stipulated in the loan agreement, the respondent-company was liable to re-pay the loan on or before 31st December 2005.
3.1. The GYS had agreed to extend a term loan facility to the respondent-company for meeting their working capital and other requirements on certain terms and conditions, as reflected in the loan agreement. As per the loan agreement the GYS was supposed to syndicate loan from petitioners-2 to 4. The respondent-company had agreed to pay an interest at the rate of 7% p.a. plus applicable interest tax under the agreement. They had also agreed to utilize the loan for working capital and as 5 approved capital expenses only and that they would furnish to GYS, at periodic intervals, a statement showing the manner in which monies had been utilised. The respondent-company was also to keep the GYS promptly informed about every resolution passed/intended to be passed and all other material developments affecting or having effect on operations of the company.
3.2 As per the loan agreement, a sum of Rs.1,35,18,202/- was advanced/disbursed to the respondent-company. The said loan was paid by petitioner Nos.1 and 2 to 4. The break-up of the amounts advanced by the petitioners is as follows : Rs.24,92,593/- was paid by GYS, Rs.95,26,609/- was paid by petitioner No.4 and Rs.15,00,000/- was paid by petitioner No.3. As per the loan agreement, the petitioners had agreed to extend a term loan facility upto Rs.150 lakhs. Petitioner No.2 had not advanced any amount/loan to the respondent- company till then, and, perhaps that seems to be the 6 reason why an objection was raised by learned counsel for the respondent-company that the petition deserves to be dismissed for misjoinder of parties. I will deal with this submission little later.
4. The loan taken by respondent-company was acknowledged/confirmed by them vide their letter dated 21st April 2004 (Annexure-E). According to the petitioners, the respondent-company and its Directors (Mr.Pratap Hegde and Mrs.Vandana Hegde) did not comply the terms of loan agreement nor did they utilize the money to meet requirements of the company and that there was a gross mismanagement of affairs which forced the petitioners to send a notice dated 7th October 2004 (Annexure-F). It would be relevant to reproduce the relevant paragraphs from the said notice for better understanding of facts. The relevant paragraphs 2 and 5 of the notice read thus: 7
"(2)............Notwithstanding prompt disbursal of the term loan amounts by GYS and others to the first of you, in accordance with the terms of the loan agreement, the first of you, represented by the second of you, have indulged in gross mismanagement of the affairs of the first of you. The second of you, have been in deliberate breach of trust in relation to the business and affairs of the first of you, and have consequently failed to keep our clients informed of the performance of the first of you.
The second of you have willfully withheld information in relation to the general performance of the first of you, but in particular in relation to accumulation of liabilities, including liabilities due and owing to banks. There has apparently been a willful, deliberate and pre-meditated mismanagement of the affairs of the first of you resulting in our client's claim for repayment of the aforesaid loan and/or interest being severely jeopardized.
(5) It has now come to the knowledge of our clients that the second of you, representing the first of you, is actively negotiating a takeover/acquisition deal with M/s Patni Computer Systems, Unit No.8, Electronic Sada, 3 MIDC, Bhaseri-26. Our clients have also reliably learnt that having mismanaged the first of you, the second of you are intending to takeup employment with the said M/s Patni Computer Systems, consequent upon which both of you intend to fraudulently transfer the benefits of existing business contracts of the first of you to the said M/s Patni Computer Systems. It is apparent that the conduct of the first and second of you will virtually render the first of you, a mere shell Company with no tangible 8 assets. Our clients perceive the conduct of the second of you as a deliberate and willful attempt to deprive our clients of amounts legitimately due to them, apart from a clear intent to cheat them and indulge in an act of criminal breach of trust to the disadvantage of our clients. Our clients have marked a copy of this legal communication to M/s Patni Computer Systems as also to the Bankers of the first of you to appraise them of the fraudulent practices that would adversely affect their interest also.
Under these circumstances, we have been instructed to issue notice to you, which we hereby do and call upon you:
(a) to pay forthwith the sum of Rs.1,35,19,202.00 (Rupees One Crore Thirtyfive Lakhs Nineteen Thousand Two Hundred and Two only) with interest at 7% per annum, totaling a sum of Rs. 1,46,60,882.00 (Rupees One Crore Fortysix Lakhs Sixty Thousand Eight Hundred and Eightytwo only).
(b) to forthwith desist from transferring in any manner the business and/or assets and/or receivable of the first of you to any person or entity; Failing which our clients would initiate appropriate legal proceedings, both civil and/or criminal, in this behalf entirely at your cost and risk without any further reference to you."
(emphasis supplied) 4.1 Respondent-company replied the notice dated 7th October 2004 and in the reply, they simply denied everything that had been stated therein. They denied the alleged negotiations for taking over the respondent- 9 company by one M/s.Patni Computer Systems. They also denied any fraudulent transfer of the business. They stated in the reply that they had complied all the terms and conditions of the loan agreement.
5. Thereafter, the petitioners came across a web site of the respondent-company and of PCS and that is how, they came to know about the dealing between the respondent-company and PCS and the transfer of a software by the respondent-company to PCS. As a result thereof, the petitioners issued a statutory notice under Section 434 of the Act dated 25th June 2005. The notice was addressed to the respondent-company, its two directors, M/s Patni Computer System and the PCS. In the notice they are referred to as 1st to 5th respectively. In order to know the exact case of the petitioners for seeking winding up of the respondent-company, and to avoid further narration of facts in detail, it would be advantageous to 10 reproduce the relevant portion of the said notice, which reads thus:
2) ..................The 1st to 3rd of you deliberately did not inform our clients of all material developments affecting the operations of the company including information pertaining to the performance of the 1st of you, accumulation of liabilities. The amounts disbursed as loan have been misappropriated and the affairs of the company mismanaged. The 1st to 3rd of you had no intention of repaying this loan. Having no intention to repay the loan and with a view to defeat the rights of our clients and with a view to see to it that there would be no assets available for the recovery of the loan, the 1st to 5th of you have colluded together and have fraudulently effected a transaction whereby the entire assets/undertaking/business of the 1st of you have stood transferred/vested with the 5th of you. With an intent to achieve this purpose the 1st of you in collusion with the 1st to 3rd of you have set up, formed and promoted the 5th of you so that the assets and undertaking of the 1st of you can stand transferred and vested in the 5th of you. You have seen to it that all the assets of the 1st of the 1st of you including receivables, movables, actionable claims, copy rights, other intellectual property, software, goodwill, cash, controlling shares held in the subsidiary company Infodesk Manipal Asia PTE Ltd., at Singapore shares held in other companies as well as contracts with 3rd parties stand assigned/made available to the 5th of you, virtually leaving the 1st of you denuded of any assets. As a result the 1st of you has stopped carrying on business, is not in a position to repay the loans given by our clients and the business earlier carried on by the 1st of you is being continued by the 5th of you. The 11 subsidiary company of the 1st of you at Singapore has become the subsidiary of the 4th and 5th of you.
All of you were aware of the loan transaction with out clients, of the liability to repay the amounts lent by our clients and of the fact that if the business and assets of the 1st of you are transacted with, dues to our clients will not be able to be repaid and that there would be no assets left remaining to proceed against for recovery. Being fully aware of this position, the 4th and 5th of you have entered into such a transaction with the 1st to 3rd of you. With a view to defeat the rights of our clients, with a view to see to it that the assets are not made available for the purpose of repayment to our clients, you have fraudulently resorted to such a transaction. Further the 2nd and 3rd of you as well as other important employees of the 1st of you have also become employed/ associated with the 4th and 5th of you in pursuance of such a fraudulent transaction.
3) Our clients notify you that such a transaction is not binding on them, that our clients hereby notify their nullification of the transaction, state that the said transaction is void and also inform you that all the assets and undertaking movable or immovable, tangible or intangible including receivables, actionable claims, copy rights, intellectual property, software, goodwill, shares, cash, as well as contracts with 3rd parties still remain available with the 1st of you to be proceeded against for satisfaction of the claims of our clients. Our clients had in fact notified earlier also that any transaction with the business and assets of the 1st of you without clearing their dues would not be binding on them. You are also notified that any property, transactions or business, including receivable, software, intellectual property rights, goodwill, shares as well 12 as contracts with 3rd parties, available to the 4th & 5th of you by virtue of taking advantage of the assets of the 1st of you or of the services of its directors and employees, being available with it, will also be available for being proceeded against for the satisfaction of the claims of our clients and will be held in trust by you for the benefit of our clients. The 1st to 5th of you are therefore required not to transact or deal further with any of such assets or business.
4) On learning that there are attempts at such transaction, our clients had already issued a notice to the 1st and 2nd of you demanding the repayment of the monies due to our client and warning you not to enter into any transaction with respect to the undertaking of the first of you and a copy of the same was sent to the 4th of you also. The 1st of you have committed and act of insolvency by resolving to a fraudulent transaction. By addressing the reply dated 31-12-2004, the 1st of you has clearly breached the loan agreement and have made it evident that the monies due to our clients are not going to be repaid.
(emphasis supplied by me) 5.1 From the contents of the notice dated 25th June 2005, it is clear that every apprehension that was expressed by the petitioners in their notice dated 7th October 2004 and which was denied by the respondent- company vide its reply dated 31st December 2004, ultimately came to be true. In view thereof, the petitioners 13 sent notice not only to the respondent-company but also to its directors viz., Mr.Pratap Hegde and Mrs.Vandana Hegde and so also to PCS Systems Limited and PCS as 1st to 5th respectively, in the notice. The petitioners accordingly demanded from all the five to immediately pay a sum of Rs.1,35,19,202/- along with interest at 7% p.a. from July 2003. It was also stated in the notice that if they fail to pay the amount as demanded, they shall initiate proceedings for winding up. Accordingly, the present petition was filed by the petitioners against the respondent-company.
6. The petitioners, having regard to the alleged fraudulent transfer of the software by the respondent- company in favour of PCS had filed company application No.1280/2005 seeking temporary injunction restraining not only the respondent-company but its directors, PCS Systems Limited and PCS, being respondent Nos.1 to 5 respectively, from utilising or dealing with any manner the 14 software belonging to the respondent-company. That application was disposed of by this Court vide order dated 1st June 2006. It was allowed in part. The learned Single Judge vide order dated 1st June 2006 modified the order dated 21st April 2006 and ordered that the respondent- company and its directors shall not alienate its software, pending disposal of the company petition for winding up by the respondent-company.
6.1 The software in question is known as Web Tracker, Optimus, Software for Car Hire Management and solutions by name of Telematics Application, Logistics Solutions, online vehicle trading solution and control room automation.
6.2 It appears vide order dated 21st April 2006, an ad-interim order of temporary injunction restraining any person except the respondent-company represented by its directors from utlising or dealing in any manner with the said software was granted. That order was carried in 15 appeal bearing OSA No.27/2006. The Division Bench disposed of the appeal vide order dated 20th September 2006 and in the concluding paragraph No.11 observed thus:
"11. In the circumstances, we deem it proper to direct respondents 1 to 3 not to alienate the present software of the 1st respondent by name Web Tracker, Optimus, Software for Car Hire Management and solutions by name of Telematics Application, Logistics Solutions, online vehicle trading solution and control room automation. The 5th respondent is directed not to transfer the ownership of the Intellectual Property rights insofar as the impugned software is concerned in terms of the agreement. The 5th respondent is also to maintain the accounts and place the same before the learned single Judge at the time of consideration of the Company Application No.1280/2005. We also deem it proper to say that respondents-1 to 3 have not chosen to contest this application or this appeal. We also make it clear that we have not considered the rival contentions raised before us."
(emphasis supplied by me) The 5th respondent mentioned in the order dated 20th September 2006 is the PCS.
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7. Thereafter, the learned Single Judge vide order dated 3rd July 2009, in view of the order passed by the Division Bench directed the PCS to place the accounts indicating the utilization of the software within a period of two weeks from the date of the order. At this stage, I am not entering into a controversy whether accounts as per the order passed by learned Single Judge as well as the Division Bench were furnished by PCS, since, in my opinion, that may not be relevant for disposing of this petition, whereby, the petitioners seek winding up of the respondent-company.
8. The company application No.1280/2005 was ultimately decided by learned Single Judge vide order dated 29th November 2009. The learned Judge after having heard learned counsel for both the sides, in particular, learned counsel for the PCS, had formulated the following points for consideration:
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"1) Whether in a winding-up proceeding an injunction order could be issued against a third party?
2) If the answer to the point No.1 is in the affirmative, whether the applicant has made out a case for injunction against the respondents 2 to 5? "
8.1 After considering the entire material placed on record and so also the provisions of the Act, in particular, Section 477 thereof, in concluding paragraph-26 the learned single judge observed thus:
"26. As far as point No.2 is concerned, for the aforesaid reasons, in my view, an order of injunction cannot be granted against respondents 2 to 5. It is also noted that the Division Bench of this Court by order dated 20.9.2006 while remanding the matter to this Court has stated that respondents 1 to 3 should not alienate the software in the ownership of the 1st respondent. Similarly, 5th respondent was also directed not to transfer the ownership of the Intellectual Property rights in so far as impugned software was concerned in terms of the agreement, while directing the 5th respondent to maintain the accounts and file the same before this Court. The aforesaid directions of the Division Bench are continued until further orders. It would also be useful to note that the subject mater in respect of which the injunction has been sought is software and if 18 respondents 2 to 5 are injuncted from utilizing the software ultimately it would affect not only respondent No.1, since there is serious dispute with regard to ownership of the software, but also the interest of the creditors. Under the circumstances, since the dispute with regard to the ownership would have to be at the first instance determined and in order to balance the interest of all parties, it is directed that respondent No.5 produce the accounts with regard to utilization of the software belonging to the respondent No.1 until a determination with regard to the ownership of the software is made. At this stage on this application no finding with regard to the ownership of the software can be given".
(emphasis supplied by me)
9. It is against this backdrop, the PCS, that is, the 5th respondent in company application No.1280/2005 filed application No.1618/2006 for intervention in the company petition.
10. Instead of hearing the said application on merits and deciding it independently, I thought it appropriate to hear learned counsel for the PCS on merits and I have heard him for quite some time on the question of facts and law involved in the main petition. I have also 19 heard learned counsel for the respondent-company at considerable length.
11. Learned counsel for PCS and for the respondent- company after inviting my attention to the loan agreement vehemently submitted that this petition deserves to dismissed outright since on the date of serving of a statutory notice under Section 454 and filing of the petition there was no debt due as contemplated by Section 434 of the Act. The other contention advanced on behalf of the respondent-company and the PCS is that the petition deserves to be dismissed on the ground of misjoinder of parties since petitioner No.2 is not a creditor within the meaning of Section 439 of the Act. Next it was submitted that the statutory notice issued under Section 434 of the Act was defective since it was addressed not only to the respondent-company but also to its directors, Patni Computer Systems and the PCS. In other words, it was submitted that except the respondent-company others 20 cannot be treated or termed as debtors within the meaning of Section 434 of the Act.
12. Learned counsel for the PCS and so also the respondent-company invited my attention to the loan agreement and in particular, Article 1 and Article 4 therein. To appreciate their submissions based on these two articles it would be necessary to reproduce them. Article 1 and 4 read thus:
"Article-1 - Definitions 1.1. 'Act" means the Companies Act, 1956, including any amendments thereof.
1.2. 'Repayment Date' means the final date for repayment as stipulated in the repayment notice under Clause 4.1.
Artice-4 Repayment 4.1. At any point during the term of the loan, GYS at its sole discretion shall have the right to convert the loan to equity at the price per share of Rs.10. GYS shall have the right to convert up to 45% of the current equity of Rs.200 Lakh.
4.2 As and when Borrower as cash positive, interest to GYS shall become payable immediately. In case the Borrower is not able to repay the loan or on or before December 31 2005 and the term loan is not extended by the Lender, and the Borrower is not able to either raise sufficient funds to repay the loan and the Lender is of the opinion 21 that the future business plan of the Borrower is not viable in its sole discretion, then the Lender and the Borrower shall endeavor to:
(i) locate a strategic buyer who shall repay the entire outstanding loan from GYS including interest and all taxes as applicable (in addition to infusion of additional funds required for the business of Infodesk) or
(ii) Sell the business of the Borrower and the proceeds shall be used to repay the entire outstanding loan from GYS including interest and all taxes as applicable. The balance if any can be appropriated by the party of the second part.
4.3 In the event GYS Chooses to convert the outstanding loan to equity, under this agreement it is envisages that the amount will not be exceeding 45% of the equity of Rs.200 lakhs."
13. Based on these articles, it was submitted that as on the date of statutory notice, which was issued on 25th June 2005, repayment of the loan was not due. Article 4(2) stipulates that the borrower was suppose to repay the loan "on" or "before" 31st December 2005. Based on this, learned counsel for the PCS submitted that the obligation to pay should exist on the day on which the demand is made. Having regard to the terms and conditions of the loan agreement, it was submitted that the obligation to 22 pay did not exist on the day on which the demand was made, that is, 25th June 2005. It was submitted that a provision in the loan agreement which provides that an option to pay does not create any right with the creditor to make payment. Right should correspond to an obligation. Since the loan agreement did not provide for an obligation prior to December 31, 2005, there was no right to demand payment prior to the said date. He further submitted that a creditor cannot demand payment until conditions prescribed in the loan agreement have been satisfied and upon satisfaction of the conditions, payment can be made only in the manner provided for in the loan agreement which is by sale of company.
14. I have considered the submissions in the light of the loan agreement and so also the other material placed before the Court and in particular, demand notice dated 7th October 2004 and statutory notice dated 25th June 2005. It is not correct to state that the agreement provides 31st 23 December 2005 only as the date to repay the loan. From perusal of the agreement it is clear that the borrower was obligated to repay the loan "on or before" December 31, 2005. In view thereof, the submission that the loan agreement did not provide for an obligation to repay the loan prior to 31.12.2005, there was no right to demand, deserves to be rejected outright. Having regard to the nature of loan agreement and subsequent developments, as reflected in the notices mentioned above, it is wrong to contend that the petitioners-creditors could not have demanded payment and ought to have waited for satisfaction of the conditions prescribed in the loan agreement. As a matter of fact, I am satisfied, in view of the conduct of the respondent-company and its transaction with PCS, it could not have repaid the loan advanced.
15. As seen in the notice dated 7th October 2004 and statutory notice dated 25th June 2005, it is clear that the respondent-company was obligated to comply certain 24 formalities/conditions for enjoying the loan that was paid by the petitioners. The petitioners when suspected that the respondent-company is likely to indulge in fraudulent activity, adverse to their interest, i.e. dealing with software with PCS, they sent a legal notice expressing such apprehension and having received reply to the notice, whereby, the respondent-company denied all allegations at that stage, kept quite for some time and again after having come to know through internet that the respondent- company was dealing with PCS, sent a statutory notice before expiry of the period mentioned in the agreement, that is, 31st December 2005. From the contents of the notice, it is clear that the respondent-company had not only committed breach of the conditions mentioned in the loan agreement but they, as alleged, fraudulently entered into a contract with the PCS and sold/transferred the software to them, which was perhaps, the only asset of the respondent-company. The transaction between the respondent-company and PCS has undoubtedly adversely 25 affected the petitioners' interest. In other words, the said transaction jeopardized the petitioners' interest. Hence, they were forced to send notice under Section 434 of the Act. In view of the conditions in the loan agreement, as observed earlier the respondent-company, I am satisfied was not able to repay the loan on or before the December 31st 2005. The petitioners, therefore, were fully justified in sending the notice and demanding the debt/loan even prior to 31.12.2005. I am satisfied that the respondent- company was unable to repay the debt.
16. Having considered the alleged transaction between the respondent-company and the PCS, from which it became evident that respondent-company would not be able to re-pay the amount on due date, they sent notice demanding the amount due not only from the respondent-company but also its directors and the PCS. Merely because, the notice was addressed to other four would not render it illegal. The fact remains that demand 26 was made from the respondent-company and interestingly, the respondent-company not only failed to pay the amount due but failed to reply the said notice. The notice was replied only by the PCS. Admittedly, their reply was not on behalf of the respondent-company. By not replying the notice, the respondent-company has virtually admitted the debt as on the date of the notice and in view thereof, it was not open for them to turn-around and say, that the debt was not due as on the date of the notice. In the course of arguments, I asked the learned counsel for the respondent-company whether they are prepared to pay the dues even at this stage, to which, his reply was in the negative.
17. At this stage, it is relevant to notice the observations made by the Supreme Court in Kesoram Industries and Cotton Mills vs. Commissioner of Wealth Tax, AIR 1966 SC 1370. The Supreme Court 27 observed that debt is a present obligation to pay an ascertainable sum of money, whether the amount is payable now or in the near future: debitum in prasenti, solvendum in futuro. But a sum payable upon a contingency does not become a debt until the said contingency has happened. In the present case, the question of contingency did not arise.
18. Similarly, this Court in Kudremukh Iron ore Company Limited vs. Kooky Roadways Private Limited, ILR 1990 KAR. 2230, while considering the question whether liability arising on account of short delivery of goods entrusted for carriage is "debt" under Section 433 (e) and whether person entrusting goods is "creditor" under Section 439, observed that the liability of the respondent-company arising on account of short delivery of goods entrusted to it for carriage, could be regarded as a 'debt' within the meaning of clause (e) of Section 433 of the Act.
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19. Thus I am satisfied that the first submission advanced on behalf of respondent-company and the PCS that the debt had not become due and payable as on the date of the statutory notice must be rejected.
20. As observed earlier, merely because, notice was addressed to other four, that is, the Directors of respondent-company, Patni Computer Systems and the PCS, it cannot be said that the notice was illegal.
21. Insofar as the last contention advanced on behalf of the respondent-company, that the petition deserves to be dismissed for misjoinder of parties also deserves to be rejected outright. It is true that till the demand notice and the statutory notice were sent, Srikant Pandit, (petitioner No.2) had not advanced any loan to the respondent- company. The maximum loan that was agreed by GYS on behalf of petitioners-2 to 4 was 150 lakhs, out of which 29 1,35,19,202/- was paid by GYS and petitioner Nos.3 and
4. Though petitioner No.2, did not advance any loan, his name also appears in the agreement as a member of the syndicate who had agreed to advance loan to the respondent-company and merely because, he did not advance any loan to the respondent-company till then, the petition cannot be dismissed for misjoinder of parties. In my opinion, adding petitioner No.2 as party in the petition, was in fact necessarily a member of the Syndicate. That apart, even a single creditor can come forward and file a petition for winding up. In view thereof, this submission also deserves to be rejected outright. Order accordingly.
22. In the circumstances, I pass the following order:
i) The petition is allowed in terms of prayer clause
(a) in the *company petition. The respondent-company is accordingly ordered to be wound up.
* Corrected vide chamber order dated 04.09.2013 30
ii) The Official Liquidator of the High Court is appointed as a Liquidator to take the asset, books of accounts and bank accounts, if any, of the respondent- company in possession forthwith.
iii) The petitioners are directed to deposit a sum of Rs.25,000/- with the O.L. to meet the initial expenses for winding up of the respondent-company.
iv) The petitioners shall furnish a copy of this order with the Registrar of Companies, Karnataka, within a period of 30 days from the date of receipt of this order.
v) The petitioners-company is directed to take out advertisement of this order in English Daily "THE HINDU"
and Kannada Daily 'VIJAYA KARNATAKA' Bangalore editions, within a period of 14 days from the date of receipt of this order.
vi) Insofar as the interim order that was passed by the learned single Judge in C.A.1280/2005 is concerned, that order shall remain operative, against the PCS, for a 31 period of six months from the date of receipt of this order by the OL.
vii) It is pertinent to note that the learned single judge while disposing of C.A.No.1280/2005 continued the directions issued by the Division Bench vide order dated 20th September 2006. Those directions are to be considered as a part of interim order passed by the learned single Judge.
viii) During this period, the PCS shall co-oeprate with the Official Liquidator to determine the ownership of the software that was transferred/sold by the respondent-
company to the PCS. It is made clear that this Court has not expressed any opinion as to ownership of the software.
ix) The O.L. shall collect all information as he deems fit and proper from the respondent-company and so also from the petitioners and PCS in respect of the software and submit his report to the Court for appropriate orders. This Court is not expressing any opinion as to 32 whether the software still belongs to the respondent- company or it could be treated as an asset of the respondent-company and whether it was transferred /sold to the PCS fraudulently at this stage.
x) It is needless to mention that the O.L. shall make his report insofar as the sale/transfer of the software by the respondent-company to PCS as expeditiously as possible in any case within a period of six months from the date of receipt of this order.
xi) In view of the observations made in the order, no separate orders on the impleading application filed by the PCS is necessary. With these observations, the application (C.A.1618/2006) is disposed of.
Sd/-
JUDGE Ia