Karnataka High Court
Velankani Software Private Limited vs Ordyn Technologies Private Limited on 3 November, 2017
Author: A.S.Bopanna
Bench: A.S. Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3rd DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.S. BOPANNA
COMPANY PETITION No.132/2011
BETWEEN
VELANKANI SOFTWARE PRIVATE LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO.43, ELECTRONIC CITY
PHASE II
BANGALORE-560 100
REPRESENTED BY MR. GIRISH ANAND KALELE
ITS HEAD-INDIA OPERATIONS AND
AUTHORISED SIGNATORY
...PETITIONER
(By Sri PRADEEP NAIK, ADVOCATE FOR
M/S. NAYAK & SRIKUMAR, ADVS. )
AND
ORDYN TECHNOLOGIES PRIVATE LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
OZONE MANAY TECH PARTK
2ND FLOOR, 'B' WING,
SY.NO.56/18, GARVEBHAVI PALYA
HOSUR ROAD
BANGALORE-560 068
REPRESENTED BY ITS
MANAGING DIRECTOR
...RESPONDENT
(By Sri C K NANDAKUMAR, ADVOCATE FOR
Ms. CHETANA BHAT, ADVOCATE
SRI G.V.RAVI, ADVOCATE FOR SUPPORTING CREDITOR)
2
THIS COMPANY PETITION IS FILED UNDER SECTIONS 433(E)
AND (F) READ WITH SECTION 434(1)(A) AND SECTION 439(1)(B)
OF THE COMPANIES ACT, 1956, PRAYING TO WIND UP THE
RESPONDENT COMPANY ORDYN TECHNOLOGIES PVT., LTD. UNDER
THE ORDERS AND DIRECTIONS OF THIS HON'BLE COURT AND ETC.
THIS COMPANY PETITION COMING ON FOR FINAL HEARING,
THIS DAY THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court in this petition filed under Section 433(e) and (f) of the Companies Act, 1956, seeking that the respondent-Company be wound-up as they are unable to pay their debts.
2. The petitioner has referred to the nature of the transaction entered into between the parties through Master Services Agreement (MSA) dated 31.05.2007. In that light in respect of the services provided, the invoices were submitted by the petitioner to the respondent. Since the payments were not made by the respondent, the petitioner is before this Court in this petition contending that the respondent though liable to pay the amount due, they are unable to pay their debts and as such the respondent-Company be wound-up. 3 The respondent had filed their objection statement disputing the contention put-forth by the petitioner.
3. In the circumstance arising herein, what is also to be kept in view is that notwithstanding the objection statement filed by the respondent, keeping in view the fact that the amount was due to be paid, a joint memo had been filed before this Court whereunder, the respondent had agreed to pay the amount to the petitioner as agreed therein. This Court having taken into consideration the joint compromise petition had at that stage disposed of the petition through the order dated 22.03.2012. The joint petition dated 22.03.2012 was also made part of the records, which would indicate that the respondent being due and liable had agreed to pay the said amount. In that view, while recalling the order disposing of the petition for further consideration, this Court had also taken into consideration the fact that since the amount as agreed under the compromise petition had not been paid, the respondent should be deemed to be unable to pay their debts. Hence, by order dated 04.04.2013, this Court had admitted 4 the petition and had directed that the advertisement be taken out in two newspapers - 'Indian Express' and 'Kannada Prabha' within the time frame as indicated therein. In that circumstance, when the respondent had not adhered to the compromise petition and had not paid the amount to the petitioner, no further consideration is required herein to arrive at a conclusion as to whether the respondent was due to pay an amount and as to whether they are unable to pay their debts inasmuch as these aspects have also been taken into consideration by this Court. Therefore, in that circumstance, when the respondent-Company have not shown their inclination to pay the amount by any subsequent development, the only appropriate course for this Court would be to order winding-up of the respondent-Company.
4. The learned counsel for the petitioner at this stage would refer to the application that had been filed in C.A.No.1373/2013 and that while directing therein, this Court through order dated 28.06.2013 had granted temporary injunction in favour of the petitioner-Company. In that 5 regard, it is contended that the respondent-Company is making an attempt to transfer their assets, therefore such an injunction had been sought. Subsequent thereto, the respondent has filed an affidavit sworn to by Sri R Venkatesh, Chief Executive Officer of the respondent-Company. In the said affidavit, since the respondent had referred to the assets available in their possession, it is contended that the winding- up proceedings be expedited for recovering the amount due to the petitioner-Company.
5. Having taken note of the submission of the learned counsel for the petitioner, all that is necessary to be clarified is, since this Court has arrived at the conclusion that the respondent is unable to pay its debts and it is to be wound-up, the Official Liquidator would be in-charge of the affairs of the respondent-Company and in that circumstance, if the petitioner is able to point out to the Official Liquidator with regard to any of the assets of the respondent-Company, the Official Liquidator would thereafter take appropriate steps with 6 the leave of this Court and take such action in accordance with law.
6. Therefore, the instant petition is allowed. It is ordered that the respondent-Company be wound-up. The official Liquidator attached to this Court shall take charge of the affairs of the respondent-Company and proceed in accordance with law. The petitioner shall deposit a sum of Rs.10,000/- with the Official Liquidator as provisional liquidation expenses and take out advertisement of the winding-up order in 'The Hindu' English daily newspaper within 15 days from the date of receipt of a copy of this order.
Sd/-
JUDGE mv * This page has been replaced vide chamber Order dt:20-11-2017