IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE THIRD DAY OF NOVEMBER, TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR OSA NO. 22 OF 2009 Between: Kusumba Sridhar, Ex. Managing Director, M/S. Vebtel Obconic Internet Protocol Pvt. Ltd., Hydrabad. ..... APPELLANT AND M/S. 3U Telecom Inc., 2854W Horizon Ridge Parkway Suite, B5-143, Henderson NV 89052, USA, Rep. By its Power of Attorney holder Mr. Pankaj Sachdev and another .....RESPONDENTS THE HON'BLE SMT. JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE SANJAY KUMAR OSA NO. 22 OF 2009 ORAL JUDGMENT: (per the Hon’ble Smt. Justice T.Meena Kumari) This appeal is directed against the order dated 22.07.2009 passed by a learned Single Judge in Company Petition No. 2 of 2008 filed under Sec. 433(e) and (f) read with Sec. 434(1) and 439 (B) of the Companies Act, 1956 by a creditor seeking a direction to wound up the second respondent company under the provisions of the Companies Act, 1956, as it is unable to pay its debts even after receipt of statutory notice under Sec. 434(1)(a) of the Companies Act. The first respondent herein is a company registered under the USA Laws providing international telecommunication services all over the world having its registered office at Carson City in Nevada State while the second respondent company, under liquidation is registered under the Companies Act, 1956 with its registered office at Hyderabad, is engaged in promoting, establishing, developing, undertaking and operating internet services, data processing, computer software consultancy, etc. While so, the second respondent company approached the first respondent company for purchase of telecommunication services and entered into an agreement on 16.08.2004 for receiving the services of the first respondent herein, at the rates mentioned in the terms of agreement. Subsequently, the first respondent raised a demand for payment of USD 16713.08 for the period from 28.2.2005 to 4.3.2005, which was, however, paid in part by the second respondent company leaving a balance of USD 10372.19. Since the said sum was not paid inspite of reminders by the first respondent company, it got issued legal notice dated 17.06.2005, which was replied by the second respondent company on 22.06.2005 admitting the liability. But as the amount was not paid, the first respondent company issued statutory notice under Sec. 433 and 434 of the Companies Act demanding USD 10372.19 with interest at 18% per annum, on delayed payment, in terms of clause 8.6 of the Agreement. Having received the notice, as the second respondent company has not made payment, the Company Petition was filed for winding. The learned Single Judge has observed that though Mr. Kota Sameer Kumar, learned counsel for the second respondent company, sought time for filing counter, has neither filed counter even after repeated adjournments nor there was representation on 10.06.2008. Thereafter, on publication of the Company Petition in Andhra Jyothi a n d Indian Express newspapers, the Secretary of the first respondent Company filed affidavit and was also examined on 2.03.2009 and marked Exs. P-1 to P-20. It is further observed by the learned Single Judge that as the second respondent company did not appear, a fresh notice was ordered on 24.04.2009 and it having received the same, did not evince any interest. Therefore, the learned Single Judge, having set exparte the second respondent company and perusing the material evidence on record, allowed the Company Petition holding that the second respondent company is not able to pay the debts of its creditors and, therefore, ordered that the company be wound up and also appointed the Official Liquidator attached to the court as the Liquidator, directing him to publish the winding up in Andhra Jyothi and Indian Express newspapers and to seize and take into his custody the assets of the second respondent company. Aggrieved thereby, the present Appeal is filed by the Ex. Managing Director of the second respondent company. The activities of the first and the second respondent companies is not in dispute. It is also not in dispute that the second respondent company owes USD 10372.19, as can be seen from the legal notice and other documents. It is also not in dispute that the learned Single Judge has given ample opportunity to secure counter affidavit on behalf of the second respondent and finally issued a fresh notice on 24.04.2009, which was duly received by the second respondent company but did not choose to evince any interest entailing itself to be set exparte. In the factual matrix of the case, we are also not satisfied with the way the second respondent has prosecuted the petition. Having heard the learned counsel for the appellant and the respondent and having perused the order passed by the learned Single Judge, we do not find any illegality in the order impugned. Consequently, the appeal fails and is accordingly dismissed. No order as to costs. ____________________ Justice T.Meena Kumari _________________ Justice Sanjay Kumar November 3, 2009 MAS.