2008 (6) TMI 575 - HC - Companies Law

Summary

Issues Involved:
1. Maintainability of the winding-up petition.
2. Jurisdiction and governing law.
3. Use of winding-up petition as a debt recovery measure.
4. Arbitration clause and its impact on winding-up proceedings.
5. Solvency of the respondent company.

Summary:

1. Maintainability of the Winding-Up Petition:
The petitioner sought the winding up of the respondent company u/s 433(e), 434, and 439 of the Companies Act, 1956, due to an unpaid debt of US$192,343.57. The respondent admitted the debt but failed to pay despite statutory notice. The court found the petition maintainable as the respondent was unable to pay its debts, fulfilling the criteria u/s 433(e) of the Act.

2. Jurisdiction and Governing Law:
The respondent argued that the governing law was the law of Singapore per the agreement. The court held that the respondent, being a company incorporated under the Companies Act, 1956, and having its registered office in Delhi, fell under the jurisdiction of this court for winding-up proceedings. The court emphasized that the laws of Singapore were irrelevant for this relief.

3. Use of Winding-Up Petition as a Debt Recovery Measure:
The respondent contended that the petition was being used to recover dues. The court clarified that the petition aimed to highlight the respondent's inability to pay its debts, which justified winding up in the larger public interest to protect unsuspecting members of the public.

4. Arbitration Clause and Its Impact on Winding-Up Proceedings:
The respondent cited an arbitration clause in the agreement, arguing that disputes should be resolved through arbitration in Singapore. The court dismissed this argument, stating that an arbitrator cannot order the winding up of a company, a power vested solely in the court by the Companies Act. The court referenced the Supreme Court's decision in Haryana Telecom Ltd. vs. Sterlite Industries (India) Ltd., reinforcing that winding-up proceedings cannot be stayed for arbitration.

5. Solvency of the Respondent Company:
The respondent claimed to be a running concern with substantial staff and ongoing payments to BSNL, suggesting commercial solvency. The court rejected this, noting that despite being operational, the respondent was heavily indebted and unable to repay its debts, thus deemed unable to pay its debts u/s 433(e) of the Act. The court referenced NEPC India Ltd. vs. Indian Airlines Limited, asserting that the ability to pay does not negate the fact of unpaid admitted liability.

Conclusion:
The court admitted the winding-up petition and appointed the official liquidator as the provisional liquidator for the respondent company. The respondent was restrained from dealing with its assets except to meet liabilities and business expenses. The order was held in abeyance for two weeks to allow the respondent to pay the outstanding debt with interest. If unpaid, the order would be enforced, and citation published. Further proceedings were scheduled for 18.8.2008.