2022 (8) TMI 659

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....e Delhi edition(s) of newspaper(s) indicated in the impugned order. 4.1 Towards the costs of publication, the appellant company was required to deposit Rs.75,000/- with the OL. 5. Aggrieved by the order of the Learned Single Judge, the instant appeal, as noticed above, has been filed. 5.1 A coordinate bench of this Court, while issuing notice in the appeal on 13.02.2019, had stayed the operation of the impugned order, albeit, till the next date of hearing. The same has continued to operate up until now. 6. Ms Shumaila Altaf, who appears on behalf of the appellant, says that the impugned order cannot be sustained. For this purpose, Ms Altaf has taken us through the record. 7. Mr Sharad Singhania, who appears on behalf of the respondent, on the other hand, has relied upon the impugned order, in opposition to the contentions advanced by Ms Altaf. 8. The record shows that the parties entered into an agreement dated 15.05.2008 [in short "2008 Agreement".] The following recital of the 2008 Agreement gives the background in which the said agreement was entered into between the parties herein: "1. The first party, August (August Infocom Pvt. Ltd., the appellant-c....

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....0,000 5,00,000 2. 15,00,000 7,50,000 7,50,000 3. 52,00,000 52,00,000 00.00 Total Amount Received From payment 64,50,000 12,50,000 4. Liability of cheques etc. as above 53,61,872 0 5. To be paid by Microview Infosystems Pvt. Ltd. 1,61,872 0 Accounts Settled 12,50,000 12,50,000 1. From today onwards whatever payment against the bills submitted by August Infocom Pvt. Ltd. which is to be received from Webel Technology ltd. after deducting Rs.1,61,872/- all the payments will be distributed between both the parties 50:50 (Fifty:Fifty) as both the parties mutually agreed and signed these documents relates to settlement of account. All the 50% payments will be made through cheques in the name of Microviews Infosystems Pvt. Ltd. Axis Bank A/c No.025010200012290." [Emphasis is ours] 12. Besides this, clauses 2 to 4 of the SA, being relevant, are also extracted hereafter: "2. If any anomaly/discrepancy in receiving/distribution of payment will be clear at the time of final payment 3. However, it is also mutually agreed that all the received payments from WTL related to TDS and Security will be d....

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..../- falling to the share of each party. Since Rs.1,61,872/- has already been accounted for, insofar as the appellant is concerned, the same can be added to the amount of Rs.10,88,128/-. 16. From the record, what has emerged is that apart from Rs.77,00,000/-, that had been received by the appellant-company from WTL, it had received a further sum of Rs.66,05,661/-. 16.1. This figure cannot be disputed, as the appellant-company has admitted, both before us as well as before the Learned Single Judge, a total amount received until December 2009 from WTL was Rs. l,43,05,661/-. 16.2. As indicated above, the S.A. accounted for the sums that each party was to receive, after adjustment of sums expended by the appellant-company. 16.3. Insofar as the balance money was concerned, which is Rs.66,05,661/-, the appellant seems to have adjusted, once again, a sum of Rs.1,61,872/-. 16.4. According to the appellant-company, the balance sum i.e., Rs.64,43,789/-, after adjusting Rs. 1,61,872/-, was thereafter to be divided in the ratio of 50:50 between the parties. 17. Therefore, according to Ms Altaf, the amount that fell to the share of each party is Rs.32,21,894.50. 17.1. Ms Alta....

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....09 and December 2009, would be Rs.22,22,000/-. 18. Furthermore, Ms Altaf says that if this amount is adjusted against the respondent's share of Rs.32,21,894.50, what would remain is Rs.9,99,894.50/- 19. The figures, according to Ms Altaf are based on the record, which cannot be disputed i.e., the 2008 Agreement, the S.A. and the figures set out in paragraph 11 of the winding up petition filed by the respondent. 20. It is, therefore, Ms Altaf's contention that notwithstanding the fact that the appellant-company was remiss in not responding to the additional affidavit dated 21.02.2015, there is no statable case set up by the respondent to seek winding up of the appellant company. For the respondent to seek winding up of the appellant-company, it would have to demonstrate that the appellant-company received monies after 2009 from WTL and secondly, despite receiving money, the same was not distributed. 21. Insofar as the balance amount of Rs.9,99,894.50/- is concerned, Ms Altaf says that the appellant is prosecuting the arbitration action lodged against WTL and as per the terms of the S.A., the respondent is required to share the financial burden. 22. In sum, it is Ms Altaf....