THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Company Application No.692 of 2010 in Company Petition No.2 of 2008 13th April, 2011 Between:- Kusumba Sridhar .. Petitioner And M/s.3U telecom Inc.2854W Horizon Ridge Parkway Suite 85-143 Henderson NV 89052 USA, rep. By its Power of Attorney Holder Mr.Pankaj Sachdeva and another .. Respondents THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY Company Application No.692 of 2010 in Company Petition No.2 of 2008 ORDER:- This is an application filed by the respondent in C.P.No.2 of 2008 under Order IX Rule 9 of C.P.C. read with Rules 6 and 9 of the Companies Court Rules, 1956, to recall the liquidation proceedings which are initiated as per the order dated 22-7-2009 passed in Company Petition No.2 of 2008. The 1st respondent herein filed C.P.No.2 of 2008 under Sections 433(e) and (f), 434 (1) and 439(b) of the Companies Act,1956, to order for winding up of 2nd respondent – Vebtel Obconic Internet Protocol Private Limited, represented by its Managing Director. The 2nd respondent herein entered appearance in the C.P.No.2 of 2008 through a Counsel. Consequent on failure of filing counter in the Company Petition, an ex parte order came to be passed on 22-7- 2009. The relevant portion of the order reads as hereunder:- “This Court ordered notice to respondent. On 18-3- 2008 Sri Kota Sameer Kumar appeared for respondent and sought time for filing counter. Subsequently, time was extended twice for filing counter. But, no counter affidavit is filed. On 10-6-2008 there was no representation for the respondent and counter affidavit was not filed. Therefore, this Court admitted the company petition and ordered publication of petition in “Andhra Jyothi” and “Indian Express” daily newspapers. Publication was duly made. Secretary of the petitioner company filed affidavit in lieu of chief examination. He was also examined in the Court on 2-3-2009 and Ex.P.1 to Ex.P.20 were marked. After 2nd March 2009 the matter is coming up for the evidence of other side. Though it has been adjourned four times after examination of P.W.1, there was no appearance for the respondent and their Counsel was absent. Therefore, this Court ordered a fresh notice on 24-4-2009, and the same has been served. In spite of the same, respondent has not shown any interest. Therefore, it is a fit case to pass ex parte order. This Court has perused various documents filed and marked by P.W.1 including the legal notice dated 17-6-2005 marked as Ex.P.5 which was se4nt by the petitioner, and Ex.P.6 reply thereto by the respondent wherein the fact that the amount is due is admitted. This Court also perused the statutory notice – Ex.P.7, and acknowledgment – Ex.P.9. Even after expiry of twenty-one days after receipt of Ex.P.7, respondent did not pay the amount to the petitioner, and therefore, it shall be deemed that respondent is unable to pay the debts of its creditors. Therefore, it is just and equitable to order winding up.” Subsequently petitioner herein filed the instant application to recall the order dated 22-7-2009 passed in C.P.No.2 of 2008. He has filed his sworn affidavit in support of the petition. It is stated in the affidavit that the liability due to the 1st respondent has been cleared and Settlement Agreement has been entered into. Settlement Agreement has been placed on record. No counter has been filed by the 1st respondent. The material brought on record indicates that the petitioner as Ex-Managing Director of 2nd respondent company cleared the amount due to the 1st respondent herein. This factual aspect has not been contradicted by the 1st respondent. In that view of the matter, I am inclined to recall the order dated 22-7-2009 subject to the condition that the petitioner shall deposit Rs.4,000/- with the Official Liquidator towards expenses incurred by the Official Liquidator after the order of winding up of the 2nd respondent company, within a week. Subject to the above condition, the application is ordered and consequently C.P.No.2 of 2008 shall stand dismissed on compliance of the condition of deposit of Rs.4,000/- with the Official Liquidator. Failing compliance of the condition, the order passed in C.P.No.2 of 2008 dated 22-7-2009 shall stand revived. _________________________ B.Seshasayana Reddy, J 13th April, 2011 smr