NETSWEEPER INC. Vs. ORG INFORMATICS LTD.

JUDGEMENT

(1.) Heard learned counsel for the parties. The petitioner by way of this petition filed under sections 433(e), 434(1)(c) and 439(1)(b) of the Companies Act, 1956, approached this court with following prayers:

(2.) The respondent is a company incorporated under the Companies Act, 1956, having objects as mentioned in the petition. The petitioner has averred in the memo of the petition that the petitioner being service provider in the telecom sector is well recognised throughout the world as such. The petitioner-company was contacted by the respondent-company for supply of Internet Policy Server Software for block websites as per DOT regulation for the BSNL Broadband Multi-play Project (hereinafter referred to as "the BBMP" for the sake of convenience), undertaken in Singapore in the month of April, 2007. The petitioner received purchase order and raised invoice for the amount of US$ 1,341,893.00 for Application Software Licence Fee and Service (Installation and Training) cost. Out of total amount of US$ 1,341,893.00, the respondent-company made payment of US$ 889,350.00 as on August 23, 2007. The annexure C is the statement of outstanding amount of US$ 452,543.00, which is dated December 3, 2007. Despite repeated requests and reminders, the balance payment did not come forward. The respondent-company on account of its own financial constraints had requested the petitioner-company to accept the amount due from another company for which the requisite resolutions came to be passed on January 30, 2009 and thereafter the amount was to be collected from another company called M/s. Spanco Singapore Pte. Ltd. (for short "M/s. Pte. Ltd."). The further board resolution came to be passed on March 11, 2010, authorising the petitioner to collect an amount of US$ 80,947.65 out of the total outstanding debt of US$ 452,843.00 from M/s. Pte. Ltd. The copy of the said resolution is at annexure E. The petitioner in pursuance thereof received an amount of US$ 80,948.00 straight from M/s. Pte. Ltd. on March 11, 2010, which it received on behalf of the respondent-company. The balance payment was covered by one more board resolution dated September 3, 2011, authorising M/s. Pte. Ltd., to make payment of US$ 371,019.00 by the respondent-company to the petitioner. That resolution is figuring at annexure F. The petitioner perceived that the said M/s. Pte. Ltd., through various e-mails, namely; July 5, 2011, July 8, 2011, July 10, 2011 and July 26, 2011, which are placed on record as the said communication did not yield any reason and the petitioner-company did not receive any payment. The petitioner through its advocate addressed a notice to M/s. Pte. Ltd., calling upon them to make payment of US$ 371,019.00 in accordance with the board resolution of the respondent-company. The said notice was issued on October 29, 2011 and the same is placed on record. The said company through its advocate replied on November 15, 2011, taken a stand that on account of lack of any privy between the two, the petitioner-company has no right to issue such notice and the earlier payment of US$ 80,947.65 was made at the request of the respondent-company. The said reply is also placed on record. The petitioner, therefore, issued statutory notice through advocate on January 11, 2012, under sections 433 and 434 of the Companies Act, 1956, which was duly served upon the company under "speed post with acknowledgment due" and "under registered speed post with acknowledgment due" on January 16, 2012, calling upon the respondent-company to make payment of US$ 371,019.00, equivalent to INR 1,91,99,973.53. The petitioner has made the averments in paragraph Nos. 11 and 12, which reads as hereunder:

(3.) This court on October 1, 2012, issued notice, making it returnable on October 29, 2012. Today, the matter is heard at length.