IN THE HIGH COURT OF KARNATAKA AT EANGA.I,O.RE,_ DATED THIS THE 31" DAY OF AUOUST,...,I'I"<Fi'*'-1'..1" 03." ._ " SHRI N'I'M1S'H~ArI:._SHAH ..PETITIONER (By Sri.PARRYIP$_SAA/ID}\I~Ii,'..'FSRCOUNSEL EOR SR1 'ARV'IND.M.NEGLUR, ADV.) 'PROPERTIES LIMITED A C-OMPVANVY' INCORPORATED UNDER THE COMPANEES ACT, 1956, A « HAVING. ITS REGISTERED OFFICE A. ATG.OLDEN HOUSE, 80 FEET ROAD ' S"-'.._E.I,OCI<, KORAMANGALA, I3ANGALORE--560 095. fizzy Sri.HARISH & CO., ADV.) RESPONDENT
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THIS CG-}’t.QN’y’ ‘ ILED UNDER SECTION 433(6) & (fi_R1W
SEC. 434 OF THE COMPANIES ACT, 1956 PRAYING TO \?V_£l~ID”–«iJ”i?A
THE RESPONDENT COMPANY.
THIS PETITION HAVING BEEN HEARD ANI:.fjREsERvEO .,
FOR ORDERS, H.N.NAGA’MOHAN DAS.:~’J;”P.RONOI_,JNCE.D’
FOLLOWING:
ORBER
Petitioner is a Class-I Merchant Bankers’:eln’gaged the biisiness of
providing financial advise and cooperaltioihhii is a registered
company under the Coiiipanies registered office at
Bangalore. The “ihe:TRe_svpondent’company is to carry on
business of develloprrient in India and abroad. In
the year appointed the petitioner as its
financial consultants. there came to be an agreement
petitioner and'”‘theV respondent company as per Annexure–B
specifyingi’ti1e:”»terIns~,._arId conditions. In terms of the agreement, the
F”CResponde.nt paid a sum of Rs.l0,00,000/– on 13.2.2007 to the
C’ ” i.’petiti»orier. Oiiaccount of service and assistance rendered by the petitioner
tiwoiinvestors by name Morgan Stanley and Deutsche Bank’s REEF Fund
‘evidenced prima–facie interest in December 2006 and January 2007 to
2′ invest money in Respondent Company. Finally the Deutsche Bank agreed
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to invest a sum of Rs.273.50 crores with the respondent. On 14.0.2007
there came to be a Term Sheet executed between the Responden~t-
and the Deutsche Bank as per Annexure–C. This agreemenit”–bet’tyeen thevi C
Respondent Company and the Deutsche Bank was Qnpiat:coyunt_of_theiepfforts
made by the petitioner under the Agreernenr.___at An’nex’ure–B terms (if the 2
agreement the petitioner submitted a 1v2.12i.’2.00i7’V’i’or:’:a sum of
Rs.10,7S,56,610/– for the servicesi_.ir’:nAdered_ periiAinnexure–D.
Thereafter the respondent».companwy~paid –Crores. According
to the petitioner deduction’ toraiiviithepayments made by the
Respondent of Rs.5,65,56,6i0/– as
on 12.12.2007, ._ ppetiti.o_ner’fs request by their letter dated
26.8.2008 as per: 4.11.2008 as per AnneXure–J,
14?_.esponden..t:i Company ~ not paid the balance amount due to the –
pet.i_Vti»on’er.__ Eiietw-eéen, _5.i_.2008 and 5.11.2003 continuously there was
Vcorrespoindence’ibetwe.en the parties and exchange of E–mail. From this
corresponidence between the parties the Respondent Company asked the
‘<p¢:i:ione1~.;p reduce the fee rate from 3.5% to 2%. But the petitioner refused
Htoifaccept the request of the Respondent Company for reduction of fee rate.
Further the correspondence between the parties reveals that Respondent
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not liable to pay any amount they paid a sum of Rs.5 Crores.~-under
tremendous pressure from the petitioner and the same do not an1otign.t.V'to
acknowledging the liability. On these grounds, the Resporirlent.
opposed the petition.
3. On 4.8.2010 when 1earnecliic’e1u1nse1i’t”or’petitionerAicovmmencied u
the arguments, learned counsel for respondent–..was }Again the
matter was adjourned to 1l.8.20′–l0′ for-_fu:ither”w–argu’1nents. On that day,
learned counsel for petitioner completed Vthe’=.argu;nents.’i Learned counsel
for respondent prayedpfor: two jweelgs time” ,arid:'”the same was refused.
However, it gwasivtoidlto ]e:art;e_d’»s:o’unsel'”for respondent that if they are
interested in addres–singthe’argu1r1ents…–they can do so within two days and
with this observation thevmatter. came to be reserved for pronouncement of
*o_rde’rs.p Even ?..after’t–one weeltiearned counsel for respondent has not come
forward to the _a’1_{guments.
4. H lfiiespoindent company admit that they have entered into an
agr..eenien’t._on 27.10.2006 as per Annexure-B with the petitioner specifying
_the–‘ terms and conditions. in terms of the agreement the transaction
the parties was to be completed on or before 31.3.2007. The
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parties by consent have agreed to extend the term of agreement bygdanother
90 days as per Annexnre–R1. Accordingly on 14.6.2007 _
came be entered between the respondent company and.’Deu-ts¢»he”‘Ban_k
per Annexure~C. Further the respondent coi*t1parg1’y..in their. s’tatern’ent”*:sf;_f
objections at para–9 admit that they have’-.receii/evdViinvesitirnerigtof
Crores by December 2007 as against appnrolved’disbursement of Rs.273.5
Crores. It is not in dispute that:fls:.1bset1tient’iythe’respondent company
made payment of Rs.5_(:rores It is also not in
dispute that as per respondent company has
agreed to pay On the face of it on the
amounts receiiv/ed«_by ‘they are liable to pay fee of Rs.8
Crores to the petitio_ner_
In: the correspondence between the petitioner and the
responden.tV’coKn1–;3;a1iy =t.bejtween January and November 2008 as found at
VA-nnexnre.s_–H to J Ztherespondent company had not denied the execution of
” }the__va»greementV.and the terms and conditions contained therein. Further in
thisicorrespnondence respondent company has not whispered a word that the
petit_ion:er has not extended any assistance and service in securing the
“investment from the Deutsche Bank and that on account of their own efforts
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they secured the investment. It is seen from the correspondence that the
respondent company requested the petitioner to reduce the pertzjenttagepf
fee from 3.5% to 2% and the same is refused by the petitioner.’ It 0′
first time the respondent company in their reply’ to the*i_’sta_tutory notice at
At1nexures»~L and M the respondent company cuon_te’n._dthat the.petitioi;.e’r.h’as ._
not performed their obligation in terms the agreement: “..:Therelfor’e, the”
defense taken by the respondentcompatiy’ invalid; not bonafide
and it is only a moonshine defense to.i.evad*e5the
6. The petiti.oner the “petition alleged that the respondent
Company is irrbifinancial dttfijefiitieegtnd corhrhercially insolvent and not able
to pay the debts.’ On the respondent company contends that
they are solvent, tii1ancial..’~sou.nd”and capable of discharging the debts.
finderpSeet:ion”*43%3(A1) ofitlie”‘Companies Act even if the respondent is
financiialgsoungd=andVuif._it_1has not paid the debts due to the petitioner, then it
deemedthat the respondent company is unable to pay the debts.
2 » Court vide order dated 07.09.2009 admitted the petition and
.per–mit;;ed the petitioner to take out advertisement in English daily ‘THE
0′ 0 _ ttittpu’ on or before 22.09.2009 fixing the date of hearing as 20.10.2009.
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The petitioner complied the order of this Court and filed copy opfhpaper
publication before this Court. Pursuant to the advertisement ngitiody
forward either to support or to oppose the passing of winding .1
the circumstances the following;
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i. The petition is hereby allowed:
ii. The respondent cornpariy Aisl-V_order’ed’»~to».2p’e’ wound up.
iii. The petitioner is direc’t’ed to Rs.25,000/~ with
the n_tiee;t,’the:”i”ri’itia1 expenses of the
windvingt ” l l
iv. ;iThe directed to serve a copy of this order on the
Registrar’ of thin 30 days.
v. petitioriervvipsplftzrther directed to take out advertisement of
A in English daily ‘THE HINDU’ within 14 days
‘ iirorr:’p–thei:;.date of receipt of copy of this order.
sale
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up order. In”