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TMI Blog2002 (10) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... oftware development. The petitioner is in the business of software consulting. The petitioner specializes in software design and development, computer consulting and contract programming services, etc. The respondent was carrying on business in the United States of America through its branch office under the name and style of Soffia Technologies Ltd. The petitioner entered into a client agreement dated September 26, 2000, with the respondent. The agreement was executed between the petitioner s branch office in New Jersey and the respondent s branch office in California. Under the terms of the client agreement, the petitioner agreed to send its employees to work on the projects of the respondent as computer programmers/analysts. The respondent was to raise orders from time to time on the petitioner giving details of the employees required and the duration of the requirement. The respondent agreed to pay the petitioner the amounts mentioned under the invoices within 30 days of its receipts. 3. It is further stated that the respondent placed three orders on September 26, 2000, and October 23, 2000, requiring the services of 12 employees of the petitioner for a period of 12 months. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration organised and operating under the laws of California and having its principal office at 460, Bergeu Blvd 4,200, Palisades Part NJ-07650. In terms of the agreement, the legal proceedings can be initiated only in the court of State of California, hence the present proceedings for winding up by the petitioner against the respondent are misconceived and abuse of process. No cause of action arises within the jurisdiction. The claim raised by the petitioner is disputed and it is not an ascertained sum. The respondent is not a creditor for the purpose of the provisions under the Companies Act. The petitioner having initiated action in the courts of laws of the State of California against Soffia Technologies Inc. in terms of the agreement dated September 26, 2000, there cannot be any parallel enquiry in relation to the claim more so under the agreement referred to in the petition. In any event, the assets of the respondent are more than the liabilities and the respondent-company is not commercially insolvent as claimed. The respondent does not admit that it owes any sum much less in USD 1,83,744.50 and the respondent is not liable to pay any interest and no ground is made out for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered address as in this agreement. Notices to be given to the client shall be sent by registered or certified mail to company at 43128, Christy St, Fremont, C.A. No. 94538. Either party may change the address to which notices are to be sent by notifying the other party in writing. If mailed as provided in this agreement, notice shall be deemed to have been given as of the mailing date. 12. Governing law This agreement shall be construed in accordance with the laws of the State of California. The parties shall hereto consent that any legal action or proceedings with respect to the agreement may be initiated in the courts of the State of California; and by the execution and delivery of the agreement, the parties hereto submit to and accept with regard to any such action or proceeding for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid court." The reading of the preamble portion of the agreement and other clauses, particularly clauses 10 and 12 leads to a conclusion that by consent, both parties, namely, Soffia Technologies Inc. and the petitioner agreed to initiate legal action or proceeding in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Technologies, Inc. a corporation organised and operating under the laws of the State of California dated September 26, 2000, and the preamble portion of the agreement as well as the other clauses, more particularly clauses 10 and 12 of the agreement. It is also seen from the counter-statement of the respondent that the petitioner had initiated action in the courts of laws of the State of California as against Messrs. Software Technologies Inc. in terms of the agreement dated September 26, 2000. In the reply affidavit the initiation of proceedings in the State of California has not been disputed. Therefore, as rightly contended by learned counsel for the respondent, there cannot be any parallel enquiry in relation to the claim more so under the agreement referred to in the petition. I am of the view that the parties to the agreement are subject to clause 12 of the said agreement; hence the present petition for winding up is misconceived. 9. Regarding the acknowledgement of liability, learned counsel for the respondent, while disputing the claim of the petitioner, has brought to my notice the minutes of the meeting held at Soffia Software Ltd., No. 168, Eldams Road, Chennai-18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p. Cas. 654. 1 In that case, the question raised before the Punjab and Haryana High Court was whether the arbitration clause ipso facto ousted the jurisdiction of competent court to entertain and decide the company petition and whether the court where the registered office of the company was situated would have jurisdiction ? A learned single judge of the Punjab and Haryana High Court, after referring to section 10, read with sections 433, 434 and 439 of the Companies Act, 1956, has answered the question in the affirmative. After going through the facts of that case, I am of the considered opinion that the same is not applicable to the facts of the case on hand. Further, before the learned judge the respondent-company failed to appear and contest the petition before admission and even at the time of final hearing none appeared on behalf of the respondent-company. Accordingly, the said decision is also not helpful to the petitioner s case. 11. In Saral Enterprises v. India Automobiles Ltd. [1982] 2 Comp. LJ 701, the Allahabad High Court has held that if there was a bona fide dispute about the existence of the debt, the petition filed for winding it up for non-payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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