2005 (7) TMI 643 - HC - Companies Law

Summary

Issues Involved:
1. Maintainability of the petition.
2. Alleged non-provision of technical know-how by the petitioner.
3. Applicability of arbitration clause and foreign law.
4. Financial status and indebtedness of the respondent company.
5. Justification for winding up the respondent company.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition:
The respondent argued that the petition is not maintainable due to bona fide disputes and the presence of an arbitration clause in the Collaboration Agreement and Knowhow Agreement, which mandates arbitration under Swiss law. However, the court held that notwithstanding the arbitration clause, a winding-up petition under the Companies Act is maintainable. The court emphasized that company proceedings are not equivalent to recovery suits and are governed by the Companies Act, which mandates the jurisdiction of the court where the company's registered office is located.

2. Alleged Non-provision of Technical Know-how by the Petitioner:
The respondent claimed that proper technical know-how was not provided, preventing profitable production and thus nullifying the obligation to pay the second and third installments of the know-how fee. The court examined the correspondence between the parties and found that the petitioner had supplied the necessary technical documentation and drawings, and the respondent had acknowledged receipt and satisfaction with the technical know-how provided. The court noted that commercial production had commenced, and the respondent had even expressed intentions to remit the second installment, indicating that the petitioner had fulfilled its obligations.

3. Applicability of Arbitration Clause and Foreign Law:
The respondent contended that the disputes should be resolved through arbitration as per Swiss law, as stipulated in the agreements. The court acknowledged the arbitration clause but stated that it would only be relevant if there were bona fide disputes requiring evidence, which was not the case here. The court found that the respondent's defense was not bona fide but rather a ploy to avoid payment, and thus, the arbitration clause did not preclude the court from adjudicating the matter under the Companies Act.

4. Financial Status and Indebtedness of the Respondent Company:
The petitioner argued that the respondent company was insolvent, heavily indebted, and unable to pay its debts, justifying the winding-up petition. The court reviewed the financial status of the respondent, noting the closure of its factory, substantial losses, and liabilities exceeding assets. The respondent's financial difficulties were corroborated by its failure to resume production and the absence of sufficient assets to meet its liabilities. The court concluded that the respondent was indeed unable to pay its debts.

5. Justification for Winding Up the Respondent Company:
Considering the respondent's financial insolvency, inability to pay debts, and the petitioner's fulfilled obligations under the technical know-how agreement, the court found it just and equitable to wind up the respondent company. The court appointed the Official Liquidator to take charge of the company's assets and records and submit a report within eight weeks.

Conclusion:
The court ordered the winding up of the respondent company, appointed the Official Liquidator, and directed that no further citations need to be published. The petition was disposed of accordingly.