TMI Blog2016 (2) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... unt is deposited within the said period stipulated herein above, the petition shall stand accordingly dismissed with liberty to the Petitioner to recover the legal dues from the Respondent in accordance with law. - COMPANY PETITION NO. 20 OF 2014 - - - Dated:- 11-9-2015 - F. M. REIS, J. For The Petitioner : Mr. Amit Prasad and Mr.Rohit Bras De Sa, Advocates For The Respondent : Mr. S. S. Kantak, Senior Advocate with Mr. M. Salkar and Mr. Arush Upmanyu, Advocates ORAL ORDER Heard Shri Prasad, learned Counsel appearing for the Petitioner and Shri Kantak, learned Senior Counsel appearing for the Respondents. 2. The above Company Petition filed by the Petitioner under Sections 433, 434 and 439 of the Companies Act, 1956, seeking winding up of the Respondent-Company. 3. It is the case of the Petitioner that the Respondent-Company was desirous of purchasing Microsoft Enterprise license and, as such, placed a firm purchase order upon M/s. PC-WARE India Pvt. Ltd. for procurement of such Microsoft Software Licenses under Microsoft Enterprise Agreement. The payment terms under the purchase order were monthly instalments of Rs,2,62,312/- each over a period of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and employs about 270 employees, who are paid their salaries regularly and has a turnover of Crore of Rupees every year is to be brought to a grinding halt by filing such winding up Petition. The Respondents have also pointed out in their affidavit in reply that the Respondent-Company is an ISO 22000 certified eminent hospitality company which owns and operates a five star luxury hotel, with state of the art amenities, in Bangalore and forms part of a renowned multinational conglomerate whose global spread extends across Asia, Africa and Europe. It is also contended that the audited balance sheet of the Respondent for the financial year 2013-2014 is in the process of being finalised and, therefore, the financial figures for the financial year 2012-2013 have been highlighted and pointed out that the turnover of the Respondent-Company for the financial year 2012-2013 was INR 35,49,65,875/-. The Respondent-Company have also made averments in the affidavit to point out that the Respondents is a respectable Company corporate and has a sizable income and acceptability in their business. 5. It is further their case that from 25.09.2008, the Respondent-Company entered into an enterpris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no privity of contract with the Respondent since the Agreement was between the Respondent and Microsoft. It is further their case that the aforesaid notice on 07.12.2013, which is a winding up notice is repeating and reiterating the false and frivolous allegations and wrongful claims against the Respondent. It is further their case that the whole conduct of the Petitioner was with malafide intention attempting to put before this Court a contractual dispute regarding recovery of monies in the guise of winding up Petition. The allegations made by the Petitioner are accordingly denied by the Respondent-Company in their affidavit in reply and further pointed out that the Respondents replied to the legal notice and put forth justification for denying each and every allegation of the Petitioner which is a matter of record. It is further contended that the Respondent is a healthy and commercially solvent entity which is able to pay its bonafide debts and, accordingly. It is prayed that the Petition be rejected. 6. The Petitioners filed an affidavit in rejoinder and pointed out that the financial statement produced by the Respondent-Company according to the Petitioners disclose th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out that the inconsistent defences raised by the Respondents would itself disclose that such contentions are not bonafide and are only made to make a semblance of dispute for illegal considerations and illegal motives. Learned Counsel further pointed out that considering the poor financial status of the Respondent-Company, the Petitioner has made out a case for winding up of the Respondent-Company. 8. On the other hand, Shri S. S. Kantak, learned Senior Advocate appearing for the Respondent-Company pointed out that the financial status of the Respondent-Company would itself disclose that there is no justification for winding up. Learned Senior Advocate further pointed out that on account of default in the services rendered by the Petitioner, the Agreement was terminated by the Respondent-Company by sending an email and, consequently, the question of claiming any amounts by the Respondents, would not arise. Learned Senior Advocate further pointed out that the claim, if any, is to be made by M/s. PC-Ware India Pvt. Ltd., and not by the Petitioner as, according to him, the Petitioner is not entitled to claim any amounts from the Respondent-Company. Learned Senior Advocate furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of the cause terms clearly provides that any termination of the causes of the Enrollment would be subject to the termination of clause Section of the Agreement. 10. Clause 7(e) of the Agreement provides thus : 7. End of Enrollment term and termination. (a) (b) (c) (d) (e) Early termination. If an Enrolled Affiliate terminates its Enrollment as a result of a breach by Microsoft, or if Microsoft terminates this Enrollment because Enrolled Affiliate has ceased to be Customer's Affiliate, then Enrolled Affiliate will have the following options for Licenses, excluding Subscription Licenses: (i) It may immediately pay the total remaining amount due, including all installments, in which case, Enrolled Affiliate will have perpetual rights for all Licenses it has ordered (for the latest version of Products ordered under Software Assurance coverage in an initial or renewal term); or (ii) It may pay only amounts due as of the termination date, in which case Enrolled Affiliate will have perpetual Licenses (for the latest version of Products ordered under Software Assurance coverage in an initial or renewal term) for (1) all copies of Products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of a breach by Microsoft, or if Microsoft terminates an Enrollment because Enrolled Affiliate ceases to be Customer's Affiliate, then Enrolled Affiliate will have early termination options described in an Enrollment. (d) Modification or termination of an Online Service for regulatory reasons. Microsoft may modify or terminate an Online Service in any country where there is any current or future government requirement or obligation that (1) subjects Microsoft to any regulation or requirement not generally applicable to businesses operating there, (2) presents a hardship for Microsoft to continue operating the Online Service without modification, and/or (3) causes Microsoft to believe these terms or the Online Service may be in conflict with any such requirement or obligation. For example, Microsoft may modify or terminate an Online Service in connection with a government requirement that would cause Microsoft to be regulated as a telecommunications provider. (e) Program updates. Microsoft may make a change to this program that will make it necessary for Customer and its Enrolled Affiliates to enter into new agreements and Enrollments at the time of an enrollment renew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of account, inter alia, claiming that the amount due as on 28.02.2013 would be a sum of ₹ 16,24,239/-. This amount which is otherwise seriously disputed by the Respondent-Company. But, however, Mr. Kantak, learned Senior Advocate appearing for the Respondent-Company submitted that such calculation has been arrived at by alleging that the instalments were payable from August, 2012. But, however, Mr. Kantak, learned Senior Counsel appearing for the Respondents has brought to my notice that as per the averments of the Petitioner themselves in the above Petition, it discloses that since October, 2012, the Respondent-Company has failed to honour their commitment towards the payment of the monthly instalment of ₹ 2,62,312/-. This contention is seriously disputed by the learned Counsel appearing for the Petitioner by submitting that as on October, 2012, the amounts payable for the months of August-September, 2012 were also due and, as such, the amounts works out to ₹ 16,24,239/-. In support of such contention, the learned Counsel appearing for the Petitioner has taken me through the correspondence on record. But, however, considering that the amounts claimed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent-Company despite of such notice. The Apex Court in the Judgment reported in AIR 2009 SC 1695 in the case of M/s. Vijay Industries vs. M/s. NATL Technologies Ltd., has observed at para 33 thus : 33. Section 433 of the Companies Act does not state that the debt must be precisely a definite sum. It has not been disputed before us that failure to pay agreed interest or the statutory interest would come within the purview of the word 'debt'. It is one thing to say that the amount of debt is not definite or ascertainable because of the bonafide dispute raised thereabout or there exists a dispute as regards quantity or quality of supply or such other defences which are available to the purchaser, but it is another thing to say that although the due as regards the principal amount resulting from the quantity or quality of supply of the goods stands admitted but a question is raised as to whether any agreement had been entered into for payment of interest or whether the rate of interest would be applicable or not. In the latter case, in our opinion, the application for winding up cannot be dismissed. 16. Taking note of the observations of the Apex Court herein above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g claims from the other creditors. We, therefore, do not find any merit in this contention also. 19. Taking note of the said observations and considering that the admitted amount due to the Petitioner prima facie works out to be a sum of ₹ 10,99,615/-, I find that the Respondent should be directed to pay such amount within a period of three months from today and on failure to do so, the consequence would follow. 20. In view of the above, I pass the following : ORDER (i) The Petitioner are directed to pay a sum of ₹ 10,99,615/- in this Court within three months from today. (ii) In case the Respondent -Company fails to deposit the said sum of ₹ 10,99,615/- or any part thereof within the said period, the petition shall stand admitted and the Petitioner shall proceed to publish the notice in two newspapers one in The Navhind Times and other in regional language Marathi Gomantak . (iii) In case the amount is deposited within the said period stipulated herein above, the petition shall stand accordingly dismissed with liberty to the Petitioner to recover the legal dues from the Respondent in accordance with law. (iv) The petition stands disposed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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