1 cp-495-05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY PETITION NO. 495 OF 2005. Siemens Limited. ..Petitioner. vs. Offsite Management System Limited. ..Respondent. .... Mr. Vishal Kanade a/w Mr. Nikhil Rajani, i/b. M/s. V. Deshpande & Co., for the Petitioner. None for the Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 10th JUNE, 2011. P.C. The Petitioner have filed the present Company Petition seeking winding up of the Respondent Company Offsite Management System Limited (the Company). The Company Petition is for hearing and final disposal. 2. The Petitioner had entered into a Leave and License Agreement dated 10th October, 2000 by which the Petitioners had allowed and permitted the Company to use part of its first floor premises admeasuring approximately at about 386 Square meters, together with open parking space for five cars in Building lying, being and situate at Plot No. 2, Sector 2, Kharghar Node, Kharghar, Navi Mumbai 410 201. By a Infrastructure Agreement dated 10th October, 2000 the Petitioners had permitted the Company to make use of the infrastructure facilities as listed therein and the Company agreed to pay Rs.1,85,280/- for the initial year for the use of the said 2 cp-495-05 infrastructure and has agreed to pay additional sums as detailed in the said Agreement. 3. From June, 2000 to April, 2003, Petitioners had raised, issued and delivered their Invoices / Bills towards the License fees, for infrastructure charges and administration charges upon the Company. The Company by its letters dated 21st June 2001 and 15th July 2002 had requested the Petitioner to extend the period of said Leave and License and also permission to continue to avail the facilities under the Infrastructure Agreement dated 10th September, 2000. By a letter dated 15th May 2003 the Company expressed its intention to surrender the premises by 30th May 2003 and requested to consider outstanding payment in phased manner. 4. On 30th May 2003 the Company confirmed handing over the premises and also the facilities and assured that it is making necessary arrangements to clear the Petitioners dues under the outstanding invoices / bills at their earliest possible. 5. On 31st May 2003 the Company forwarded its 4 Post Dated cheques for an aggregate sum of Rs. 19,36,446/- and also agreed to pay the infrastructure facility charges particularly of phone bills after finalizing the same with the Petitioners. The Company also assured that it will make their best efforts to honour all the cheques on or before the respective due dates. 6. Since the cheque for the sum of Rs. 5.00 Lacs was returned dishonoured with a remark “Funds Insufficient” the Chairman and Managing Director of Respondent by its letter dated 30th June 2004 requested the Petitioners to hold on the said cheques for at least six months on the ground that their Business has not picked up as 3 cp-495-05 expected and the Company will try its best to clear the Petitioner’s debts and the same will be cleared as and when the Company receive cash flow in their Business. 7. By a Notice dated 16th August 2004 issued under section 138 of Negotiable Instruments Act the Petitioner called upon the Company and also the Chairman and Director of the Company to make the payment under the said dishonoured cheque. The Company by its reply dated 21st September 2004 confirmed its awareness of the legal implications of bounced cheques and informed that it had issued the cheques in anticipation of pickup of Business. The Company had further informed that it had closed its Office premises and to carry all future correspondence at the E-mail I D of said Dr. Suresh S. Agarwal, the Chairman and Managing Director of the Company. 8. As the payments were not forthcoming, a statutory notice was issued on 2nd December 2004 under sections 433 and 434 of the Companies Act, 1956 which returned unserved with a remark “Unclaimed”. 9. The Company Petition was instituted before the Court on 18th May, 2005 to which there was no reply filed by the Company. Having regard to the fact that the Company by its letter dated 31st May, 2003 (Exhibit H) had issued its Post dated cheques towards its outstanding liabilities and having regard to the fact that said cheques were issued by the Company in anticipation of pickup of Business, amounts to admission of liability by the Company as contained in the its communication dated (21st September 2004 - Exhibit ‘K’) the Company Petition was admitted on 19th January 2006 and the Provisional Liquidator was appointed. 4 cp-495-05 10. The Company Petition was advertised as deposed in the Affidavit of Publication dated 13th October 2010. An Affidavit of Service of Notice under Rule 28 which was returned with a remark “Unclaimed”. The Company however has not appeared before this Court. 11. The Company has not filed its reply to the Statutory Notice nor filed its reply to the Company Petition. The Company has admitted its liability by its letters dated 31st May 2003 (Exhibit H) and 21st September 2004 (Exhibit ‘K’). All the contentions / allegations made in the Company Petition have also remained uncontroverted. In view thereof, the Company Petition is made absolute in terms of prayer clauses (a) and (b) which reads thus : “(a) that the Company i.e. Offsite Management System Limited, be ordered to be Wound up by and under the order and directions of the Hon’ble Court; (b) that the Official Liquidator of this Hon’ble court or some other fit and proper persons be appointed as the Provisional Liquidator of Captech Online Limited, and of all the assets and liabilities of the Offsite Management System Limited,” 12. The Company Petition is accordingly, disposed of, with no order as to costs. [ S. J. Kathawalla, J. ]