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2013 (9) TMI 700 - HC - Companies LawWinding up - Inability to pay debts - Held that:- Whether the statutory notice dated 17.01.2011 - Annexure-E issued by petitioner is contrary to Section 434(1)(a) of the Companies Act, 1956 - Held that:- The certificate of incorporation of respondent-company as per Extract produced at Annexure R-1 along with Statement of objection would indicate that registered office of the Respondent-Company is located at No.41/1, Uipar Mansion, R.V. Road, Basavanagudi, Bangalore and not at the address shown in the statutory notice. Hence, there is non-compliance of Mandatory requirement of Sec. 434(1)(a) of Companies Act - Decided against petitioner. Whether the petitioner has made out a case for winding up of the respondent-company under Section 434(e) and 439 of the Companies Act, 1956 - Held that:- petitioner had participated, negotiated and mediated for the parties to enter into joint development agreement. In fact, petitioners themselves agree in the present petition that they used their long standing expertise in the real estate field and their good offices to persuade M/s. Era Land Marks India Limited enter into a joint development with the respondent-company which ultimately resulted in Joint-Development Agreement dated 05.07.2008 coming into existence on account of the negotiation and discussion made by the petitioner. It is because of this precise reason the agreement dated 26.04.2008 between respondent and petitioner came into existence whereunder respondent agreed to pay to the petitioners a professional fee of Rs. 2.50 crores. The said contract is a contemporaneous contract entered into between respondent and petitioner. In other words, the performance of obligations under the said agreement was dependent on the performance of the obligations by the parties to the Joint-Development agreement dated 05.07.2008 - conditions agreed to between the parties would indicate that there was substantial modification amongst other conditions to the original agreement dated 05.07.2008. This would also indicate that claim of the petitioner which was based on the Joint- Development Agreement dated 05.07.2008 got eclipsed by virtue of the Addendum agreement dated 28.10.2009 and thereby benefits which would have accrued to the respondent got substantially reduced. It is because of these subsequent developments, the respondent has attempted to stave off the claim made by petitioner contending that debt is not admitted and such a plea cannot be brushed aside as a false defence. It is to be further noticed that respondent - company and the developer are now at logger heads and they have ignited the arbitration proceedings and same is pending before the Arbitral Tribunal as admitted to by the learned Advocates appearing for the parties. In this background, it cannot be held or construed that the defence set up by the respondent- company to be either moon shine or a frivolous one to discard it or to construe the said defence raised by the respondent without any basis. In that view of the matter, I am of the considered view that the dispute raised by the respondent to deny the claim of petitioner is bona fide and one of substance and such dispute cannot be construed as frivolous or brushed aside as a cloak to hide its inability to pay the debt and prima facie respondent has established that plea putforward by way of defence in the statement of objections is a bona fide plea - Decided against petitioner.
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