AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2013 (9) TMI 700
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....oad, Bangalore-560 060 and it intended to develop the same by entering into a joint development agreement and was on the look out for prospective and superior developer who could make huge investment and make proper use of the land and petitioners being professional agents/mediators in the field of real estate and development of land, their services came to be engaged by the respondent company. Petitioner using its long standing experience introduced M/s. Era Land Marks India Limited, New Delhi for entering into a joint development agreement in respect of the above said land with the petitioner and for the said purposes petitioners negotiated and mediated with said developer for a very good offer being given to the respondent Company which was the highest offer made by any developer during the said period. It is contended that pursuant to such negotiation, respondent company entered into a joint development agreement on 05.07.2008 with M/s. Era Land Marks India Limited, New Delhi and same was duly registered. 3.1 It is contended by the learned counsel that pursuant to the said joint development agreement entered into, it was agreed to by the respondent company to pay 1.25% of the ....
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.... the said notice dated 17.01.2011 or in the address mentioned in the cause title of the present petition, but on the other hand respondent has produced the extract of the master company details obtained from the website of the Ministry of Corporate Affairs as per Annexure-R-1 which would indicate the registered office of the respondent company is at 41/1, UIPAR Mansions, R.V. Road, Basavanagudi, Bangalore, Karnataka - 560004, and not at the address either specified in the statutory notice or in the address depicted in the cause title of the petition. As such he contends that there is no substantial compliance of section 434(1)(a) of the Companies Act, 1956 and as such the petition is liable to be dismissed. Even otherwise on merits he would contend that present petition has been filed under section 433(e) and petitioner has to necessarily establish any one or all the ingredients of Section 434(1)(a) to (c) and contends that undisputedly petitioner has not been able to demonstrate the alleged debt due having been admitted by the respondent or demand made by petitioners as contemplated under section 434(1)(a) has not been complied by respondent enabling the petitioner to seek for win....
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...., unless the petitioner - company has pleaded and proved to the satisfaction of the Court that in the facts of the case, such a situation has arisen namely, the respondent - company is unable to pay its debt, by taking into account the contingent or prospective liabilities of the respondent company. He draws the attention of the court in the instant case petitioner has neither pleaded nor proved these aspects and as such petitioner is not entitled for the relief sought for. 5. At the request of petitioner's counsel, the matter was listed on 21.06.2013 and a memo has been filed by the learned counsel for the petitioner enclosing the photocopy of the 'returned cover' which contains an endorsement 'no such company' which is claimed to have been despatched by the learned counsel for the petitioner through courier to the registered office of the respondent-company and the visiting cards of the tenants said to be in occupation of the said premises to contend that registered office of the respondent-company is not located in the address available with the ROC depicting the registered office of the respondent company as mentioned therein. He would also draw the attention of the Court to t....
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....l fee of Rs. 2.5 Crores. 8. The basis for entering into such contract between the parties was on account of the land measuring 36 acres 4 guntas situated at Kengeri village, Bangalore South Taluk which had been converted for residential purposes being available with the promoters/directors of the respondent-company and they were on the look out of a developer with repute and who was capable of investing huge amount and was approached by the petitioner who agreed to use their expertise in the field of real estate and secure a developer. In this direction, the petitioner has introduced M/s. Era Land Marks India Limited, New Delhi, to the respondent-company and after negotiation and discussion, the offer made by the said developer to the respondent-company which was the highest offer by any developer made during the said period came to be accepted by the respondent - company and accordingly a joint development agreement came to be entered into between respondent-company and M/s. Era Land Marks India Limited, New Delhi on 5.07.2008 - Annexure-A which was duly registered in the office of Sub Registrar, Kengeri. Prior to the execution of said joint development agreement, agreement dated....
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....ay the professional fee of 1.25%. It was also contended that under the joint development agreement, developer was to get 37% undivided interest and on account of subsequent development, the said percentage got reduced to 29.5% and so also the security deposit to be paid by developer to respondent came to be reduced from Rs. 35 Crores to Rs. 25 crores and hence it is contended that payments made to the petitioner is itself a excess payment and as such, they are not entitled to any further payment. RE : POINT NO.(1): 12. The learned counsel for the petitioner has vehemently contended that respondent itself has admitted its registered office is at the address mentioned in cause title and as such, it cannot now turn around and contend that its registered office is not at that address but elsewhere. 13. The Division Bench of this Court in Sundur Manganese and Iron Ores Ltd. v. Manganese Ore (India) Ltd. [2002] 37 SCL 159 (Kar.) has held that when a petition is filed under Section 433 (e) the notice of demand if not sent to the registered office but to the administrative office cannot be held to be sufficient compliance with the statutory requirement to raise a presumption that compan....
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....tion 434 should be strictly complied with and the service of the notice should be at the registered office of the Company (and not any other office), to raise the presumption under Section 434(1)(a)." 14. Though a valiant attempt has been made by the learned counsel for the petitioner to drive home the point that respondent itself has in its reply notice admitted that its registered office is at the address reflected in the statutory notice and the memo filed on 21.06.2013 would also evidence this fact would not be a ground to accept the said plea, since consent does not confer jurisdiction. 15. The certificate of incorporation of respondent-company as per Extract produced at Annexure R-1 along with Statement of objection would indicate that registered office of the Respondent-Company is located at No.41/1, Uipar Mansion, R.V. Road, Basavanagudi, Bangalore and not at the address shown in the statutory notice. Hence, there is non-compliance of Mandatory requirement of Sec. 434(1)(a) of Companies Act. 16. In that view of the matter, point No.(1) has to be answered against the petitioner and in favour of the respondent. RE: POINT No.2: 17. The petitioner is seeking for winding up....
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....th and puts forth a substantial case against the petitioner's claim, the petition for winding up will be rejected. A mere assertion of a debt payable by the respondent company is not sufficient to attract the discretion of the Court in favour of the petitioner. The principle governing the exercise of Court's discretion is extracted in the decision of the Division Bench of this Court in Hegde & Golay Ltd. v. State Bank of India. "A basic question arises, does the Court have a discretion under Section 222(e) and 223? The general rule is that where a petitioning creditor can prove that his debt is unpaid and the company is insolvent it is the duty of the Court to direct a winding up and the creditor is entitled to an order ex debito justitiae. On the other hand, it has been said that the latter is phrase which means no more than that in accordance with settled practice the Court can only exercise its discretion in one way namely by granting the order. These statements can be reconciled on the basis that although the matter is 'a complete and unfettered judicial discretion' the discretion is exercised in accordance with certain established principles, but the ....
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....bsp; "The principles on which the Court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends." 21. When can a dispute be termed as a bona fide one? When is it to be treated as substantial? These questions are difficult of a precise answer in abstract. These are in the realm of facts and each case would churn out different answers. But the Court can refer to certain tests envisaged in similar circumstances, though not exactly under the provisions of the Companies Act. In the case of a suit filed under Order 37 of the Code of Civil Procedure, the defendant has to seek leave of the Court to defend against the claim. It has been held that if the defence could be honest and bona fide, leave should be granted; a decision whether the defence pleaded is bona fide or honest at the initial stage of a suit, can only be hazardous; but, still, the Court is called upon to apply its judicial mind on this question. Similarly is the situation when, the respondent company is ....
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....he order of the learned Single Judge so as to call for any interference. This writ appeal is dismissed." 21. The Apex Court in IBA Health (P.) Ltd. v. Infor-Drive Systems Sdn. Bhd Reported in 2010 AIR SCW 6282 has held that existence of 'bona fide dispute' implies the existence of substantial ground for the dispute raised and in such circumstances where it is found that contested debt is doubtful company Court should not entertain a petition for winding up . It has been held therein as follows: "24. Reference was also made to another decision in Shailendra Dania & Ors. v. S.P. Dubey. [(2007) 5 SCC 535]: (AIR 2007 SC (supp) 208: 2007 AIR SCW 3553), where a similar question arose in connection with the eligibility for promotion wherein : differential service experience based on differential educational qualifications had been prescribed and longer period of service experience was prescribed for diploma holder Junior Engineers in comparison to degree holder Junior Engineers for the post of Assistant Engineer. Explaining the rationale behind the permissibility of making such a distinction, this Court held that the difference between the service qualifications....
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.... (Quarter per cent) shall be paid soon after the first building foundation of the project at Kengeri. 4. The total Professional fee payable is Rs. 2.50 Cr. (Rupees Two Crores fifty lakhs only). This is in full and final settlement of your claim for the said deal as spelt in your above referred letter. 5. As per your above cited letter Rs. 33,00,000/-(Rupees Thirty three lakhs only) shall be directly paid to M/s. Sanjiv Bayana of Delhi from the total professional fee of Rs. 2.5 Cr. (Rupees Two Crorers Fifty lakhs only) and the balance Rs. 2.17 Cr. (Rupees Two Crores Seventeen lakhs only) shall be paid to you in full and final settlement of the deal." 25. It is not in dispute that petitioner was successful in ensuring that respondent - company enters into a joint development agreement with M/s. Era Land Marks India Limited on 05.07.2008 which is at Annexure-A. The said agreement stipulates the conditions required to be performed by each of the parties. All such reciprocal promises required to be performed as stipulated in the agreement is not required to be delved upon by this Court. However, some of the essential terms of the said....