D.S. NANDISH Vs. TECHNICOLOR INDIA PRIVATE LIMITED (PREVIOUSLY KNOWN AS PAPRIKASS INTERACTIVE SERVICES PRIVATE LIMITED) NO. 2. LAVELLE ROAD BANGALORE - 580 001

JUDGEMENT

(1.) THE petitioner is before this Court in this petition filed under Sections 433 (e) and (f) of the Companies Act praying that the respondent company ordered to he wound up so as to realise the amount due according to petitioner, from the assets of the company. Though the petitioner contends that he has other claims also against the respondent company, he has restricted his claim in the instant petition for a sum of Rs. 1,12,50,000/ - towards annua) bonus with 15% interest and for the sum of 700.000 US Dollars ('USD' for short) towards balance of Consultancy fee. The said amount claimed are according to the petitioner admittedly due as it is payable notwithstanding the termination of agreement. In respect of the other claims the petitioner has initiated Arbitration proceedings as per the terms of the agreement. The respondent company has filed its objection statement and disputed the claim made in the instant petition and have put forth their grounds of defence. The petitioner has filed his rejoinder. Heard Sri Srinivas Raghavan, learned counsel far Indus Law on behalf of the petitioner and Sri Aravind Kamath, learned counsel for ALMT Legal appearing on behalf of respondents. Perused the materials on record.

(2.) THE undisputed facts are that the respondent company which was incorporated on 20.12.2006 as 'Paprikaas Interactive Services Private Limited' has thereafter changed its name to the one indicated in the cause title. The respondent company is engaged in the business of providing services to global animation, video games, visual effects and its objects and services are detailed in the Memorandum and Articles of Association. The petitioner was a Director of the respondent Company and also employed as Chief Executive Officer (CEO) in the respondent company. The terms of employment was agreed under an agreement dated 13.02.2007 which was for the initial period of three years. On mutual terms, the employment as CEO was terminated during September 2009 i.e., before the completion of the initial period of three years. Thereafter the petitioner, his wife and two other shareholders of the respondent company sold the shares held by them in the respondent company to the holding company under a Share Purchase Agreement dated 29.12.2009. Further, a Consultancy Agreement dated 31.12.2009 was entered into between the petitioner and the respondent company whereunder the Consultancy fee of 900,000 USD and Commission was agreed on the terms indicated therein.

(3.) ON the other hand, the respondent company contends that the payment of bonus depends on the circumstance indicated in the Employment Agreement which not only requires an assessment of the performance, but also the other criteria. They contend that even with regard to the Consultancy fee also, the payment was circumscribed by the compliance of the terms of the agreement. Since the petitioner has contravened clause 12 and entered into competing business though it is prohibited therein, he would not be entitled to the amount when the agreement is terminated on that basis. There is an arbitration clause and the notice itself shows that they should raise a dispute and in any event, a reference is already pending before the Arbitrator. Hence, no case is made out for seeking winding up.