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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 ..... an order to wind up the affairs of the appellant-company on the twin grounds as noticed earlier, we do not find any material in this appeal even for admission and it is accordingly dismissed at the admission stage. - O.S.A. NO. 36 OF 2009 - - - Dated:- 21-10-2009 - D.V. SHYLENDRA KUMAR AND L. NARAYANASWAMY, JJ. Udaya Holla for the Appellant. JUDGMENT 1. The appeal by a company which is aggrieved of an order passed by the learned Company Judge by admitting a petition filed under section 433( e ) and ( f ), read with section 434, of the Companies Act, 1956, by another company by name M/s. Info-Drive Systems Sdn. Bhd. earlier known as Bhari Information Technology Systems Sdn. Bhd. and who incidentally happened to be an agent of the present appellant-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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. IBA Health Ltd., Australia or any other persons/ companies during the subsistence of the deed of settlement dated December 19, 2003. A mandatory injunction was also sought to direct the respondent herein to furnish the details of payment received by it from M/s. Solutions Protocol Sdn. Bhd. in respect of HICT package one contract. Both parties entered into a compromise by filing a compromise petition dated March 18, 2006, in the said suit as per annexure H. The suit was decreed in terms of the compromise petition . . . 8. It is not in dispute that both the parties filed compromise petition dated March 18, 2006, before the City Civil Judge, Bangalore, in O.S. No. 9655 of 2005. Paragraphs 2, 3 and 5 of the said compromise petition make it clear that the defendant (the respondent herein) agreed to provide, report once in two months to the plaintiff of the invoices raised by the defendant on M/s. Solutions Protocol (P.) Ltd., Malaysia, pertaining to the transactions under HICT package-1 contract. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in clause 5 of the compromise petition clearly discloses that the process of merger had already taken place. If that was so, there was no need on the part of the respondent-company to undertake to make future payments to the plaintiff in terms of the deed of settlement vide clause 3 of the compromise petition. Therefore, it is clear that the 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 urged by the petitioner that the respondent-company is bound to pay the commission till the cut-off date tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties nor had anything to do with the terms of the compromise between the parties; that annexures J1 to J9 could have never constituted any worthwhile material even to examine the company petition within the scope of section 433( e ) and ( f ), read with section 439, of the Act, that the finding based on annexures J1 to J9 is nothing short of a perverse finding and though the matter is referred to the Mediation Centre for conciliation, nevertheless the company petition having been admitted and admission of a company petition having a very serious and deleterious consequence on the company and as is the law declared by the Supreme Court the very admission of the company petition for winding up the company due to its inability to pay its debts or for other reasons also is a matter which can be adjudicated and it is for this reason the present appeal is filed to get over the order passed by the learned Company Judge admitting the petition for examination. 7. By drawing attention to annexures J1 and J2 submission of Sri Holla is that the documents on the face of it reveal no transaction involving the appellant-company, that no payments had been made nor any service received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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