ORG INFORMATICS LTD. Vs. NETSWEEPER INC.

JUDGEMENT

(1.) This appeal is directed against the order dated April 3, 2014 (since reported in--Netsweeper Inc. v. ORG Informatics Ltd., 2015 189 CompCas 530) made by the learned company judge in Company Petition No. 173 of 2012 whereby, the learned judge has admitted the winding up petition while granting some time to the appellant-company to make good its liability to the respondent-company failing which, further order of advertisement would be passed. The impugned order has been passed in the backdrop of the following facts. M/s. Netsweeper Inc., the respondent herein is a company incorporated under the Companies Act, 1956 (hereinafter referred to as "the Act"). The respondent presented a petition before this court under sections 433 and 434 of the Act, being Company Petition No. 173 of 2012 seeking the following substantive reliefs:

(2.) The respondent-M/s. Netsweeper Inc. (hereinafter referred to as "the original petitioner" or "Netsweeper") has averred in the memorandum of the petition that the petitioner is a leading service provider for the telecom sector and has much acclaim and hegemony all over the world. During the course of its business the appellant-company contacted the original petitioner for supply of Internet Policy Server Software to block websites as per DOT regulation for the BSNL Broadband Multiplay Project (hereinafter referred to as "the BBMP"), undertaken in Singapore in the month of April, 2007. The petitioner received purchase order and raised invoice for an amount of US$ 1,341,893.00 for Application Software Licence Fee and Service (Installation and Training) cost. Out of the total amount of USS 1,341,893.00, the appellant-company made payment of US$ 889,350.00 as on August 23, 2007. Annexure C to the petition is a statement of the 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 appellant-company on account of its own financial constraints had requested the original petitioner to accept the amount due from another company, viz., M/s. Spanco Singapore Pte. Ltd. (hereinafter referred to as "Spanco") for which the requisite resolutions came to be passed on January 30, 2009 and thereafter the amount was to be collected from the said company. A further board resolution came to be passed on March 11, 2010, authorising the original petitioner to collect an amount of US$ 80,947.65 out of the total outstanding debt of US$ 452,843.00 from Spanco. Pursuant thereto, on March 11, 2010, the original petitioner received an amount of US$ 80,948.00 directly from Spanco which payment was made on behalf of the appellant-company. The balance payment was covered by one more board resolution dated September 3, 2011, authorising Spanco, to make payment of US$ 371,019.00 by the appellant-company to the petitioner. In the context of the said resolution, the original petitioner entered into correspondence with Spanco through various e-mails dated July 5, 2011, July 8, 2011, July 10, 2011 and July 26, 2011. However, despite protracted exchange of e-mails, since the amount as agreed was not paid to it, the original petitioner addressed a notice dated October 29, 2011, to Spanco calling upon it to make payment of US$ 371,019.00 in accordance with the board resolution of the appellant-company. Spanco, through its advocate replied on November 15, 2011 and took a stand that on account of lack of any privy between them, the original petitioner had no right to issue such notice and that the earlier payment of US$ 80,947.65 was made at the request of the appellant-company. The original petitioner, therefore, issued statutory' notice through its advocate on January 11, 2012, under sections 433 and 434 of the Companies Act, 1956, calling upon respondent-company to make payment of US$ 371,019.00, equivalent to INR 1,91,99,973.53, which was duly served upon the appellant-company on January 16, 2012, under "speed post with acknowledgment due" and under "registered speed post with acknowledgment due". Since there was no response to the above notice, the original petitioner approached this court by way of the petition under sections 433 and 434 of the Act seeking the reliefs noted hereinabove.

(3.) Ms. Megha Jani, learned counsel for the appellant vehemently assailed the impugned order by submitting that the learned single judge failed to appreciate the bona fide defence raised by the appellant. It was pointed out that the project in respect of which the purchase was made from the original petitioner, consisted of several players who formed an informal group and worked back to back, which fact is also clear from the averments made in paragraph 5 of the petition. It was submitted that as and when payments were received from the participants, the same were forwarded to the original petitioner, however, the learned single judge has failed to take into account the fact that the appellant herein was only one link in the entire chain and since the payment to the respondent-original petitioner was dependent upon the payments made by the former participants in the chain, there is a bona fide dispute regarding the liability of the appellant to make the payment when no money was received from the other participants preceding the appellant in the chain. Referring to the e-mails exchanged between the Spanco and Netsweeper, it was pointed out that the original petitioner-Netsweeper was independently corresponding with Spanco for payment of its dues. It was urged that the e-mails make it abundantly clear that the money released by IBM to Spanco was in fact a result of follow up and lobbying done by the original petitioner with IBM. It was submitted that the correspondence between Spanco and Netsweeper show that all demands had been raised on Spanco and not on the appellant, which clearly establishes an understanding that amounts were to be paid when the appellant-company received the same from Spanco, who in turn was to receive it from IBM. It was submitted that the material on record clearly establishes a nexus between the parties who were participants in the project and hence, the findings recorded by the learned single judge are contrary to the record.