Karnataka High Court
R Krishnamurthi vs Avesthagen Limited on 14 August, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
C.A. 1049/12
IN
CO.P NO.145/2012
BETWEEN:
R.KRISHNAMURTHI,
AGED ABOUT 34 YEARS,
S/O N.R.RETHINAVEL,
RESIDING AT NO.14,
1ST CROSS, 2ND FLOOR, S.M.ROAD,
NEAR DALMIA COMPLEX,
JALAHALLI CROSS, BANGALORE - 57
... APPLICANT
(BY SRI SRIVATSA, SR.COUNCEL FOR SRI MOHAMMED
SADIQH, ADV., FOR K.V.LEGAL, ADV.,)
AND:
AVESTHAGEN LIMITED
HAVING ITS REGISTERED OFFICE AT
"DISCOVERER" 9TH FLOOR, UNIT 3, ITPL,
WHITEFIELD ROAD,
BANGALORE - 560 066
REPRESENTED BY ITS MANAGING DIRECTOR
DR.VILLOO MORAWALA PATELL
... RESPONDENT
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THIS APPLICATION IS FILED UNDER SECTION 433 (e)(f)
OF THE COMPANIES ACT, 1956, PRAYING TO PASS AN ORDER
FOR WINDING UP OF AVESTHAGEN LIMITED, UNIT NO.3,
DISCOVERER, 9TH FLOOR, INTERNATIONAL TECH PARK,
WHITEFIELD ROAD, BANGALORE - 560 066, IN ACCORDANCE
WITH THE PROVISIONS OF THE COMPANIES ACT, 1956, AND
ETC.,
This application coming on for orders this day, the court
made the following
ORDER
Petitioner claiming to be an employee of the respondent company has sought an order to wind up the respondent company under Section 433(e) and (f) of the Companies Act.
2. In support of the action, he has averred that the respondent, a company incorporated under the Companies Act, has been in the business of pioneering convergence of food, pharma and population genetics leading to preventive personalized medicine/healthcare and allied research work. He joined the services of the respondent company as a 'Junior Research Fellow-I, Food, Water and Seed Testing Services' vide employment offer letter dated 22.12.2003 on a salary of Rs.8,000/- p.m., annually Rs.96,000/-, which included other allowances as per Annexure-D. 3
3. In recognition of his services and the efforts put in for the financial year 2009-10, his gross salary was revised to Rs.6,14,212/- p.a. with effect from 1.4.2010, as evidenced from Annexures-E and F. He was in service from January 2004 to December 2011, but his salary was not paid regularly in terms of the commitment made by the company. Consequently, he had no option but to send his resignation vide letter dated 8.12.2011 which was accepted and he was relieved with effect from 16.12.2011 as per Annexures-G and H.
4. His assertive contention is, despite his legitimate claim which, to the knowledge of the respondent company, was legal and sustainable, they have defaulted in payment. His request to pay the amount was fruitless, ultimately compelling him to resort to issuance of notice. It was also of no avail.
5. Referring to the compulsive action he had to take to issue statutory notice, he has sought for action under Section 433(e) of the Act. It is further averred, respondent instead of complying with the demand made in the notice, has sent an untenable reply to evade liability.
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6. Heard learned senior counsel, Mr.Srivatsa.
7. Issue notice to the respondent in this application.
8. At this juncture, an application is moved under Order XXXIX Rules 1 and 2, C.P.C. seeking an order to restrain the respondent company, its garnishee, viz., Reserve Bank of India, Intellectual Property Office Building, GST.Road, Chennai, from transferring any of its assets, tangible or intangible, shares, etc. to AVESTHAGEN PHARMA AG on the apprehension that the respondent company is all out to transfer its assets to a foreign company and thereby dissipate all its holdings in India. It is stated , if this is done, there will be absolutely no tangible asset left for any action in law.
9. The application is supported by the affidavit of R.Krishnamurthi wherein he has reiterated what is urged in the petition and the action taken by the respondent company.
10. Reference is made to documents like e-mails to support the contention that there is imminent danger to the assets of the respondent company as it is likely to be transferred. Annexure-G to which reference is made, reveals that one Villu 5 representing the respondent company has sent a communication to all current shareholders informing them that the year 2012 will be a transformation year for the company in respect of concretization of investments to metamorphose itself into a pharmaceutical healthcare company. It is stated, they have transacted with AVESTHAGEN PHARMA AG, a company abroad. He has made the following suggestion which is extracted hereunder:
'Avesthagen Pharma AG will own 100% of
(a) Avesthagen Pharma Pvt.Limited in Singapore and (b) Avesthagen Pharma Pvt.
Ltd. in India. This means we are transferring the complete entire business activities of personalized diagnostic, biosimilars, NBEs, NCEs, including the portfolio of eight plus four molecules of which two molecules are set to reach commercial stage shortly and creating therefore a tremendous value of these entire business activities.'
11. All these communications have originated from the office of the respondent company and I am satisfied if the proposal is put into effect, if not much, at least the claim of the petitioner would be impacted. I am satisfied grant of interim order as sought for is necessary to preserve the assets of the respondent company.
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12. Taking into consideration attending facts and circumstances of the case, I am satisfied grant of interim order of injunction as sought for is necessary to preserve the assets of the respondent company.
12. Hence, issue ad interim order of injunction as prayed for. It shall be in force for a period of three months. Meanwhile, petitioner shall take steps for service of notice to the respondent through normal modes, like e-mail, registered post and courier service.
13. Registry to communicate this order to the respondent and all concerned.
Sd/-
JUDGE vgh*