Case Law Details
HIGH COURT OF KARNATAKA
Sumo Technologies (P.) Ltd.
Versus
Enterprise Marketing Solutions India (P.) Ltd.
CO. PETITION NO. 232 OF 2010
DECEMBER 7, 2012
ORDER
1. Heard the petitioner. None appears for the respondent.
2. The petition was admitted by its order dated 21st December, 2011 and the petitioner was permitted to take out paper publication. Accordingly, in compliance of the said order petitioner has taken out paper publication. The respondent herein challenged the order of admission in OSA No.5 of 2012. The same came to be dismissed on 30th August, 2012.
3. The petitioner is a company incorporated on 24th April, 2006 as a Private Limited Company and doing business of selling, reselling and exchanging, etc. and dealing in all relevant components of computers. The respondent had approached the petitioner to hire the computers and laptops, by entering into an agreement. In view of the agreement, the respondent had hired computers, laptops, and peripherals from the petitioner. As such, the respondent is due to the petitioner in a sum of Rs. 54,01,595/- of which Rs. 34,60,096/- has been paid and the remaining amount due to the petitioner is Rs. 19,41,499/-. Since the said amount has not been paid by the respondent, a statutory notice was issued to him and the same has not been replied. In addition to the non-payment of said amount, the respondent also did not return the laptops, computers and peripherals hired by the petitioner. The value of the unreturned computers and laptops is worth Rs. 5,64,500/- and in total, the respondent is due to the petitioner in a tune of Rs. 28,10,421/- with interest. All these particulars were furnished to the respondent-company by legal notice dated 5th July, 2010. The learned counsel for the petitioner submits that the respondent became silent and has not responded to the same and also has not paid the amount. Under these circumstances, and also being satisfied with the case of the petitioner, this Court admitted the petition. Finding error in the order of admission, the respondent preferred an appeal. In the appeal, the respondent has taken a contention that no amount is due to be paid to the petitioner and the bona fide dispute between the parties cannot be gone into in summary proceedings in the Company Court and the petitioner should have filed a civil suit for recovery of the dues The Company judge had committed an error in admitting the petitioner and also ordering advertisement. The contentions before the Appellate Court has been considered and rejected and the respondent was permitted to appear and satisfy the company judge about its stand. The submission of the learned counsel has been examined in the light of the materials produced in the petition. Annexure-E series is the invoices and the same has been acknowledged by the respondent by putting seal and signature, which is available in the petition. The laptops hired by the petitioner were not returned for which invoice has been raised and forwarded to the respondent on 25th September, 2010 for a total amount of Rs. 5,65,500/-. The same has been acknowledged by the respondent by putting seal and signature. The statutory notice dated 15th July, 2010 sent to the respondent is also produced as Annexure-M and acknowledgement is also seen in the petition.
4. Statement of objections has been filed by the respondent in which denial has been put forth. In the statement of objections the respondent has admitted having taken computers from the petitioner on hire basis and in turn the same has been given to another company by name M/s. Atyati Technologies Private Limited. The transactions between the parties have not been disputed by the respondent. Further it is stated that all the laptops, which were taken by the petitioner, have been returned, but no materials and evidence have been produced for having returned the same. The contention to the effect that since the laptops have been given on hire basis to another company, the petitioner cannot raise the bills and invoices against the respondent cannot be accepted. Since it is not sure that whether the respondent could sub-lease or hire the laptops and other to another company. No such materials or evidence are produced.
5. Having accepted the fact of hiring laptops and other peripherals from the petitioner and acknowledging the receipts and invoices and also the cost of the unreturned 20 laptops for which no valid defence has been placed by the respondent, the defence taken in the statement of objections is contrary to materials placed in Annexure-A to the statement of objections. At internal page 13 of the same, wherein the name of the petitioner has been referred to in sundry creditors list as on 31st March, 2010 for an amount of Rs. 10,10,476/-, yet again fortifies the stand taken by the petitioner. In the OSA 5 of 2012, it has been observed by the Court at paragraph 7 of the judgment that though it was stated before the Appellate Court that the respondent company has returned the 29 computers and paid the entire amount due to the petitioner, the same has not been accepted by the Appellate Court. It has been further observed by the Appellate Court that “at an undisputed point of time, the Managing Director of the appellant company has admitted the liability and sought for time to repay the money”. This reference made by the Appellate court further strengthens the case of the petitioner that the respondent had admitted the debt payable to the petitioner. What has been referred in Annexure-A at page No.13, the same entry also has been examined by the Appellate court. When the case of the parties have been examined on two occasions by this Court as well as the Appellate Court, and the respondent is not successful in the defence taken against the petitioner, it is to be held that the petitioner has satisfied this Court by placing prima facie case to wind up the respondent-company. From the materials available, it shows that the respondent is not serious in defending the case. When the statutory notice has been sent, it is the duty of the respondent to reply to the same and the same has not been taken serious note of. Even before this Court also, the respondent has not appeared. ‘In the statement of objections also, no serious defence is taken. Under these circumstances, I have heard the petitioner and have gone through the materials placed and also the statement of objections filed by the respondent and further, the observations made by the appellate court in OSA No.5 of 2012. All these things convince me to pass the following:
ORDER
1. The Company petition is allowed.
2. The respondent company is wound up.
3. Official Liquidator is directed to take appropriate steps as per law.
4. The petitioner is directed to deposit Rs. 15,000/- within fifteen days from the days from the date of receipt of a copy of this order.
5. The petitioner is also directed to communicate this order to the Registrar of Companies within fifteen days from the date of receipt of a copy of this Order.