MOTOROLA INDIA LTD Vs. DSS MOBILE COMMUNICATIONS LTD

JUDGEMENT

(1.) Before I take up these application it would be necessary to recapitulate the progress made in Company Petition No.357/99, and in the process, referring to and/or highlighting certain relevant court orders passed in this petition from time to time.

(2.) Company Petition No.357/99 is filed by the petitioner under Sections 433 (e), 434 and 439 of the Companies Act, 1956 (hereinafter referred to as the 'Act') read with Rule 9 of the Companies (Court) Rules, 1959 (hereinafter referred to as the 'Rules') for winding up of the respondent company, namely, M/s. DSS Mobile Communications Ltd. This petition is founded on the averments that the respondent company owed a sum of Rs.9,83,78,310/- (Rs.8,2245,429/- towards principal and Rs.1,61,32,881/- towards interest till 30th April, 1999) as on the date of filing of the petition. Notice dated 25th May, 1999 was served upon the respondent under Section 433(e) read with Section 434 of the Act calling upon the respondent to pay the said amount with future interest within 21 days from the receipt of the notice followed by another notice dated 4th September, 1999 as certain typographical mistakes crept in the earlier notice. As in spite of these notices payment was not made, present petition was filed.

(3.) After notice was served upon the respondent and the respondent appeared, parties negotiated the matter which resulted into settlement. Application recording the settlement along with consent terms of settlement was filed vide CA 815/2000. Pursuant to this settlement some payments were made by the respondent which fact was recorded in the order dated 25th May, 2000. The Court accordingly disposed of the petition in view of the settlement directing that the parties shall be bound by the consent terms. However, the respondent could not adhere to the terms of the settlement and pay the amount as agreed. Clause 12 of the consent terms entered into between the parties stipulated that in the event of default of payment of any of the installments, the petitioner would be entitled to approach this Court for restoration of the petition. The petitioner accordingly filed CA No.358/2002 for restoration of the petition which was allowed vide order dated 16th July, 2002. The petitioner also filed CA No.357/99 for appointment of provisional liquidator. Order dated 16th July, 2002 was passed in this application as well appointing the Official Liquidator attached to this Court the Provisional Liquidator with the direction to take over the assets and properties of the respondent company. Petition was admitted and citation was directed to be published in the 'Indian Express' (English) and 'Nav Bharat Times' (Hindi) and Delhi Gazette. Thereafter respondent filed CA No.881/2002 for recall of the order dated 16th July, 2002. During the pendency of this application the respondent company showed its willingness to make further payments in terms of settlement between the parties and the matter was adjourned from time to time.