(1.) THE petitioning creditor has filed the above company petition under Sections 433(e), 434(1)(a) and 439(1)(b) of the Companies Act, 1956, for winding up of the respondent -company.
(2.) IN the company petition, it is stated that the respondent -Soffia Software Ltd. was incorporated under the provisions of the Companies Act, 1956. The authorised share capital of the respondent -company is Rs. 2,99,50,500 divided into 29,95,050 equity shares of Rs. 10 each. The issued, subscribed and paid -up capital is Rs. 2,99,50,500 divided into 29,95,050 equity shares of Rs. 10 each. The main objects for which the respondent -company was incorporated are to carry on business in computer software development. The respondent is presently engaged in the business of software development. The petitioner is in the business of software consulting. The petitioner specializes in software design and development, computer consulting and contract programming services, etc. The respondent was carrying on business in the United States of America through its branch office under the name and style of Soffia Technologies Ltd. The petitioner entered into a client agreement dated September 26, 2000, with the respondent. The agreement was executed between the petitioner's branch office in New Jersey and the respondent's branch office in California. Under the terms of the client agreement, the petitioner agreed to send its employees to work on the projects of the respondent as computer programmers/analysts. The respondent was to raise orders from time to time on the petitioner giving details of the employees required and the duration of the requirement. The respondent agreed to pay the petitioner the amounts mentioned under the invoices within 30 days of its receipts.
(3.) THE respondent has filed a counter -affidavit disputing various averments made by the petitioner. It is stated that there is no privity of contract between the petitioner and the respondent. The agreement referred to by the petitioner was entered on September 26, 2000, between Soffia Technologies Ltd., a corporation organised and operating under the laws of California and having its principal office at 460, Bergeu Blvd 4,200, Palisades Part NJ -07650. In terms of the agreement, the legal proceedings can be initiated only in the court of State of California, hence the present proceedings for winding up by the petitioner against the respondent are misconceived and abuse of process. No cause of action arises within the jurisdiction. The claim raised by the petitioner is disputed and it is not an ascertained sum. The respondent is not a creditor for the purpose of the provisions under the Companies Act. The petitioner having initiated action in the courts of laws of the State of California against Soffia Technologies Inc. in terms of the agreement dated September 26, 2000, there cannot be any parallel enquiry in relation to the claim more so under the agreement referred to in the petition. In any event, the assets of the respondent are more than the liabilities and the respondent -company is not commercially insolvent as claimed. The respondent does not admit that it owes any sum much less in USD 1,83,744.50 and the respondent is not liable to pay any interest and no ground is made out for winding up of the respondent -company.