9911796707
TMI Blog2018 (9) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 439 of the Company Act, 1956 (hereinafter referred to as the Act ) seeking winding up of the respondent company. 2. The case of the petitioner is that the parties entered into two separate agreements dated 12.12.2005 being Service Request-Cum-Agreement for Corporate Voice Delivery and Service Request-Cum-Agreement for International Private Leased Circuit. It is pleaded that the petitioner commenced to provide services as per the agreements on 10.02.2006 and monthly invoices were raised on the respondent from March, 2006 onwards. It is pleaded by the petitioner that in breach of these two agreements, the respondent failed to pay invoiced amounts due under these two agreements. Hence, it is pleaded that the petitioner was constrained to terminate the agreements by issuing a termination letter dated 20.11.2006. 3. It is further pleaded that as the agreements were governed by the laws of Republic of Singapore, the petitioner filed a recovery suit before the High Court of Republic of Singapore. Despite summons being served on the respondent, the respondent failed to appear before the High Court of Republic of Singapore. Accordingly, the High Court of Republic of Singapore deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner which aspect has not been brought to the notice of the High Court of Republic of Singapore. (iii) He further submits that the services that were being provided were illegal and contrary to the legal position as CBI has registered an FIR against the petitioner. Hence the petitioner cannot be allowed to recover the amount claimed as it is based on acts done contrary to law. It is pleaded that permitting the petitioner to recover this amount would be unsustainable as the claim is founded on a breach of law in force in India 7. I may first come to the judgment of this court in the case of Ex.Sud Ltd. v. Indian Aluminium Cables Ltd.,(supra). This court held as follows: 6. As would be clear from the respective cases of the parties, following two questions would arise for consideration: (a) Whether the winding up petition would be maintainable on the basis of a foreign decree? To put it differently, whether it is necessary on the part of the holder of a foreign decree to seek execution of the decree under Section 44-A of the CPC? This assumes importance because in such an execution, when filed, the judgment debtor can contest the foreign decree on var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to say that when such a petition is filed, the court is precluded from making any further probe and proceed on the assumption that the debt is payable on the basis of the said decree. Rather, in such proceedings, it would be open to the company to show that even if it is a `debt' the same is disputed bona fide. Debt payable under a decree can be challenged on the plea that the decree is obtained by fraud etc. As a sequittar when decree is passed by a foreign court, the judgment debtor/company will have right to demonstrate that such a decree is obtained by fraud or is not binding as it offends any of the provisos contained in Section 13 of the CPC. If the argument of learned senior counsel for the petitioner is accepted, it can have far-reaching consequences and the provision for winding up could be misused by obtaining a decree fraudulently, not getting it executed and filing winding up petition and converting it to a coercive mean of extracting money which may otherwise be not payable. Necessarily, therefore, the petitioning creditor will have to meet the challenge of the judgment debtor/company when validity of the said decree is questioned on such grounds. I may hasten to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a decree may not be conclusive as to the matter directly adjudicated upon. 11. In the present case, the judgment is ex-parte passed in the absence of the petitioner. The issue would be as to whether the respondent was given an adequate opportunity to appear and defend himself. 12. A perusal of the agreement between the parties shows that the correspondence address of the respondent is stated to be B-24, 25, Sector-1, Noida-210301, India. It is further stated that for clarification the contact person is Mr.Arun Maini. His e-mail addresses are [email protected] and [email protected]. Relevant portion of the agreement reads as follows: Section A: Particulars of Applicant Name: APM Infotech Pvt. Ltd. Certificate of Incorporation/Business Registration No. Correspondence Address: B 24-25, Sector-1, Noida-210301- India Postal Code_____ Name of the Authorised Officer of the applicant: Mr.Arun Maini Designation Director NRIC/Passport No. Section B: Billing New Account Billing Address (if different from correspondence address) B-24-25, Sector-1, Noida-210301- India Postal Code: Billing Currency: S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily, if the party is found to be absent when service of summons is sought to be effected on him at his residence and there is no likelihood of the party being found at the residence within reasonable time and he has no agent empowered to accept service. Explanation to the said rules clarifies that a servant is not regarded as a member of the family within the meaning of Order V, Rule 15 of the Code. However, while effecting service under Order V, Rule 15 of the Code, process server has to record a specific finding that the party is absent from his residence and there is no likelihood of the party being found at the residence within reasonable time. The service can be effected only on an adult member of the family of the party. Process server has therefore, to take care and caution on noting down the name and details of the adult member of the family. 16. Clearly the manner in which the service was allegedly affected on the respondent does not prima facie inspire any confidence. 17. Further the notice by an email was also sent at [email protected] . A perusal of the additional affidavit filed by the petitioner would show that this was the email address mentioned on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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