- (1.) THE petitioner herein seeks an order of winding up of the respondent company under Section 433(e) and (f) read with Section 434(1)(A) and 439(1)(b) of the Companies Act, 1956. THE petitioner faces its claim to a decree obtained before the High Court of Justice, Queen-s Bench Division, Commercial Court, -England and Wales.'.
(2.) UNDER an agreement dated 20.9.2000, the petitioner granted a finance facility to Pentafour international Singapore Private Limited subsequently came to be known as Pentasoft Singapore Private Limited, to a sum of US$ 10 million for the acquisition of software and related products for onward sale to buyers. UNDER the terms of the agreement, the respondent herein furnished a corporate guarantee guaranteeing payment. The allegation of the petitioner is that the Pentasoft Singapore private Limited committed defaults in payment of a sum of US$ 9,464,562.40 with interest awarded as on 31.12.2003 to a sum of US$ 484,686.53, thus aggregating to a sum of US$ 9,949,248.93. It is alleged that Pentasoft Singapore Private Limited and the respondent company incorporated Ruby Orifice group Inc., incorporated under the laws of the Seychelles. This company entered into a settlement with the petitioner company agreeing that Ruby Orifice Group Inc. would repay the amount due to the petitioner and thereby discharge the liabilities of Pentasoft Singapore Private Limited and ail its guarantors as a consideration of transfer of securities by Pentasoft Singapore Private Limited, it is stated that the petitioner made a demand on Pantasoft Singapore Private Limited for repayment of sum of US$ 11,390,164.29 by 31.7.2005, the amount due under its letter dated 7.7.2005 as on 30.6.2005. Taking the defence that claim was barred by limitation, the respondent referred to the agreement that Pantasoft Singapore private Limited had entered into with Ruby Orifice Group Inc. on 19.3.2004, as resulting novation of contract thereby denied its liability. This resulted in the petitioner moving the High Court of Justice, Quean-s- Bench, Division UK. By judgment dated 13.7.2007 in Claim No.2006 Folio 1140, the Queen-s Bench Division, Commercial Court, High Court of Justice granted the decree for a sum of US$ 858,708.42 profit from 21.8.2006 to the date thereof at a daily accrual of US$ 2,658.54 on account of liquidated and ascertained damages, totaling to a sum of US$ 13,362,754.05.
(3.) THEREAFTER, the petitioner issued a statutory notice under the Companies Act on 18.12.2007 that the judgment of the Queen-s Bench Division being final, the respondent as liable to pay the sum that as the decree was passed by the reciprocating country, the decree was executable against the respondent in India and called upon the respondent to pay the decreed amount of US$ 13,362,754.05 or to its rupee equivalent as at the exchange rate prevalent as on the date of the decree, failing which, the petitioner threatened to proceed under Section 433(e) and (f) read with Sections 434(1)(A) and 439(1)(b) of the Companies Act, 1956 before this Court. This was replied to by the respondent. Referring to the petitioner-s agreement entered into with Ruby Orifice Group Inc., the respondent pointed out that the same was entered into without the respondent-s concurrence that the decree obtained from the English Court could not be enforced in India, as the respondent had not submitted to the Jurisdiction of the Courts in United Kingdom. They further denied that they were ever served with any notice dated 18.12.2008 and denied their liability. By letter dated 15.3.2008, the petitioner replied, to the said letter of the respondent, reiterated the claim thus ultimately invoked this Court-s jurisdiction seeing winding up of the company.;