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TMI Blog2009 (10) TMI 533X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant-company, rendering some service on commission basis. 2. The company petition was presented on the premise that in respect of certain commission due to the petitioner-company, the respondent-company who is now the appellant before us, has entered into a compromise though the suit itself was not one for recovery of any money and in terms of the compromise on a future contingent receipt of service on payment of a price by the appellant-company, the company was to make certain payments to the petitioner-company, as stipulated in the compromise and the respondent-company was adopting devious methods to deprive the petitioner-company of such legal entitlements which amounts to evading payment of indisputable amounts and therefore came u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued in the company petition and on receipt of the notice the present appellant-company entered appearance through counsel. The learned Company Judge finding a prima facie material to admit the company petition passed an order on 17-9-2009. While admitting the company petition the learned Company Judge has observed as under in the order dated 17-9-2009 : "4. On the allegation that the respondent-company committed breach in making payment of the commission to the petitioner, a civil suit in O.S. No. 9655 of 2005 was filed by the petitioner before the City Civil Court, Bangalore, seeking permanent injunction restraining the respondent herein from entering into any contract for transfer of undertaking of the company either in favour of M/s. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 6 of the compromise petition states that the compromise shall be binding on the parties and shall not be construed as creating an executable decree. 10. It is also not in dispute that pursuant to this compromise certain sums were paid by the respondent-company to the plaintiff. It is thus prima facie clear by looking at the undisputed understanding reached between the petitioner and the respondent, right from the co-operation agreement till the filing of the compromise petition that the respondent has undertaken to pay to the petitioner as per the entitlement of the petitioner and as per the obligation undertaken by the defendant under the deed of settlement. As already stated, under the deed of settlement, the payment to be made in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assertion made by the respondent that its business with M/s. Solutions Protocol Sdn. Bhd. came to an end after the merger is against the very admitted case made out before the civil court in O.S. No. 9655 of 2005. Moreover, the petitioner has placed strong reliance on annexures J1 to J9 to establish that M/s. Solutions Protocol Sdn. Bhd. was directed by the holding company of the respondent to raise the purchase order on it and to pay the amount to another subsidiary company, namely, M/s. IBA Health (Malaysia) Sdn. Bhd. and this was done by the holding company to deprive the legitimate amount payable to the petitioner. The documents produced at annexures J1 to J9 prima facie probablise this assertion of the petitioner. The contention urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Company Judge thought it proper to refer the matter to the Mediation Centre for conciliation and resolution of the settlement having particular regard to the fact that the parties had even earlier in the suit filed by the petitioner-company had settled the matter and suit had been disposed of in terms of the compromise entered into between the parties. For such purpose, the learned Company Judge had ordered the parties to appear before the Bangalore Mediation Centre on 15-10-2009. It is in this background the present appeal is presented. 6. Appearing on behalf of the appellant-company, submission of Sri Udaya Holla, learned senior counsel is that the learned Company Judge has virtually jumped to the conclusion, about the company petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of annexures J1 to J9, the appellant-company being not a party at all, they could have no bearing or relevance to the appellant-company and therefore the finding on such document which have nothing to do with the appellant-company, that too for passing a very serious order like admitting the company petition for examining the question of winding up of the company, as the order per se not warranted, was blatantly illegal and therefore the appeal merits examination, is never sustainable in law. 8. As was done, before the learned Company Judge, reliance is sought to be placed on the several authorities and as laid down by the Supreme Court in the case of Pradeshiya Industrial & Investment Corpn. of Uttar Pradesh v. North India Petro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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