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TMI Blog2022 (8) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... n of expenses incurred in the arbitration proceedings, there is no material to demonstrate, at least presently, that the respondent was called upon to share the expenses. The impugned order dated 07.01.2019 is set aside - The appellant-company will deposit 50% of Rs.9,99,894.50/-. with the Registry of this Court - Appeal disposed off. - CO.APP. 4/2019 - - - Dated:- 22-7-2022 - HON'BLE MR JUSTICE RAJIV SHAKDHER AND HON'BLE MS JUSTICE TARA VITASTA GANJU Appellant Through: Ms Shumaila Altaf, Adv. Respondent Through: Mr Sharad Singhania, Adv. [Physical Hearing/Hybrid Hearing (as per request)] RAJIV SHAKDHER, J. (ORAL): 1. This appeal is preferred against the order dated 07.01.2019 passed by the Learned Single Judge. 2. The Learned Single Judge, via the impugned order, has admitted the winding up petition preferred by the respondent under Sections 433(e), 434 and 439 of the Companies Act, 1956 [hereafter referred to as the 1956 Act .] 3. A consequential direction was also issued by the Learned Single Judge, appointing the Official Liquidator (OL) as the Provisional Liquidator. 3.1 The Provisional Liquidator was directed to take over, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recognizes the fact that certain amounts had been spent, both by the appellant, as well as the respondent. 11. Furthermore, as per the SA, the monies received from WTL were to be distributed in the ratio 50:50. This is evident on a perusal of the following extracts taken from the SA: II. EXCESS PAYMENT MADE/TO BE MADE BY AUGUST INFOCOM PVT. LTD. NO. PARTICULARS SETTLEMENT MADE AS UNDER August Infocom Pvt. Ltd. Microviews Infosystems Pvt. Ltd. A. Difference of I-Expenditure (as above) to be paid to 17,66,514.00 00.00 B. August Infocom Pvt. Ltd. issued cheques to different vendors which is to be honoured as under: Dharath Computers 11,47,200 Dharath Computers 9,40,000 EIH 3,03,108 EIH 5,00,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y agreed that all the received payments from WTL related to TDS and Security will be distributed equally and the expenses of ITR and other taxes if applicable (for tax audit and others for FY 2008-2009 of M/s August Infocom Pvt. Ltd. will also be shared 50:50 (Fifty:Fifty). 4. Similarly, if required to claim disputed or outstanding payment from Webel Technology, through any Judicial Court/arbitrator the expenses will be born by both the parties 50:50 and M/s Microviews infosystems Pvt. Ltd. will deposit the 50% expenses on demand from August Infocom Pvt. Ltd. within 10 days from the date of demand by cheque failing which the claim of M/s Microviews Infosystems Pvt. Ltd. will be null and will loose (sic.) their claim. [Emphasis is ours] 13. A perusal of the details given in the first table (marked as II), would show that certain monies had to be paid to the appellant with respect to the payments made by it, inter alia, to various vendors. 13.1. To be noted, Rs. 53,61,822 is the sum total of the amounts given against A and B appearing in the first table. Pertinently, the amount marked against B although is shown as Rs.35,95,358/-, when tallied up, adds u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Altaf, the amount that fell to the share of each party is Rs.32,21,894.50. 17.1. Ms Altaf has drawn our attention to the winding up petition filed by the respondent, which, inter alia, sets out in paragraph 11 the details of payments received by the respondents. The aforesaid paragraph is extracted hereunder- 11. That after completion of the allotted job to the petitioner herein M/s Microviews Infosystems Pvt. Ltd. raised its bill upon the company and the company accepted the said bills without any demour and made part payment thereof. The details of the said statement of accounts as on 31st March, 2010 is given below: Date Party Name Invoice No. / Cheque No. Memo Bills raised Payment Received 01.08.2008 August Infocom Pvt. Ltd. 202208 Advance recd. 4,89,700/- ..10.2008 August Infocom Pvt. Ltd. Advance recd. 7,33,500/- 15.02.2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed i.e., the 2008 Agreement, the S.A. and the figures set out in paragraph 11 of the winding up petition filed by the respondent. 20. It is, therefore, Ms Altaf s contention that notwithstanding the fact that the appellant-company was remiss in not responding to the additional affidavit dated 21.02.2015, there is no statable case set up by the respondent to seek winding up of the appellant company. For the respondent to seek winding up of the appellant-company, it would have to demonstrate that the appellant-company received monies after 2009 from WTL and secondly, despite receiving money, the same was not distributed. 21. Insofar as the balance amount of Rs.9,99,894.50/- is concerned, Ms Altaf says that the appellant is prosecuting the arbitration action lodged against WTL and as per the terms of the S.A., the respondent is required to share the financial burden. 22. In sum, it is Ms Altaf s contention that the impugned order should be set aside. 23. Mr Sharad Singhania, on the other hand, says that these arguments were not advanced before the Learned Single Judge. 23.1. It is also his contention that the appellant had not responded to the additional affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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