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2016 Supreme(Mad) 3988

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Rajiv Shakdher, J.
Laytons Solicitors LLP UK - Appellant
Vs.
Commonwealth Inclusive Growth Services Ltd. - Respondent
C.P. No. 265 of 2013
Decided On : 28-06-2016

Advocates:
Advocate Appeared:
For the Appellant : Samyuktha for Shivakumar & Suresh
For the Respondents: M. Vaidhyanathan

Headnote:

Companies Act – Sections 3, 454 – Company Court (Rules), 1959 – Rule 130 – Winding up – Company Petition is filed by a Solicitor firm, based in London, going by the name, Laytons Solicitors LLP UK. – Petitioner, as is evident, is a limited liability partnership firm. – Petition has been filed by Laytons to seek winding up of the respondent company, i.e., Commonwealth Inclusive Growth Services Ltd. – Held, Agent (in this case MIPL) could have received payments, if offered, subject to, inter alia, a general or special permission of the Reserve Bank of India (RBI) being obtained in that behalf. – As adverted to above by me, at no stage, did CIGSL offer to make the payment. – Had CIGSL offered to make the payment, then, the onus would have been on Laytons to seek, inter alia, a general or special permission of RBI, in case, the provisions of Section 3(b) or (c) came in the way of funds being remitted to it. – What concerns me, more particularly, is the fact that the financial position of CIGSL does not appear to be healthy. – Clearly, it has recorded a net loss of Rs. 5,48,90,434/- in the financial year 2010-2011 and a net loss of Rs. 4,11,40,573/- in the financial year 2011-2012. CIGSL has also, incurred, consistently, cash losses from 2008-2009 to 2011-2012; the details qua which are set out in paragraph 16 of the Petition. – None of these assertions have been traversed by CIGSL. – Court is inclined to admit the Company Petition. – Petition Admitted

ORDER :

Rajiv Shakdher, J.

1. This Company Petition is filed by a Solicitor firm, based in London, going by the name, Laytons Solicitors LLP UK. The petitioner, as is evident, is a limited liability partnership firm.

1.1 For the sake of convenience, the petitioner, hereafter will be referred to as Laytons.

1.2 This Petition has been filed by Laytons to seek winding up of the respondent company, i.e., Commonwealth Inclusive Growth Services Ltd. (hereafter referred to as "CIGSL").

The reason, which propelled Laytons to institute this Petition briefly, is as follows:

1.3 Laytons, evidently entered into a Representation Agreement (in short, agreement), dated 26th July, 2010 with CIGSL. This agreement enabled Laytons to act as the Solicitors for CIGSL in connection with its admission to the Alternative Investment Market (in short, AIM) and to render assistance in "initial fund raising".

1.4 AIM, apparently, is the sub-market of the London Stock Exchange which allows smaller companies to float shares, albeit, with, if you like, a more flexible regulatory system, than that, which is applicable to the main market.

1.5 In sum, under the agreement, Laytons, inter alia, was required to recommend and introduce CIGSL to potential nominated advisers and brokers and render advice on corporate re-structuring, AIM Rules, responsibilities of directors and rules of corporate governance.

1.6 Laytons claim, that they had indicated to CIGSL, that the, work envisaged under the agreement, which revolved around completion of "Initial matter" would cost in the region of 80,000 pounds (excluding VAT and disbursements). It appears that, in connection with the work carried out by Laytons, it raised four (4) invoices on CIGSL, the details of these invoices, for the sake of convenience, are set out herein below:     

S. No.

Date of Invoice

Invoice No.

Invoice Amount (in £)

Amount outstanding (in £)

1

31.8.2010

053504

13200

3210.14

2

26.10.2010

053814

21,150

21,150

3

31.10.2010

054313

19,785.67

19,785.67

4

31.12.2010

054795

14,440.95

14,440.95

Total amount outstanding (in £)

58,586.76

1.7 It is, however, important to note that except for a partial payment made towards the first invoice, CIGSL did not pay any amount towards the remaining three invoices.

1.8 Evidently, on the issue of payment of amounts in respect of the invoices referred to above, e-mails were exchanged between the parties herein.

1.9 The first such e-mail dated 11th October, 2012, which was sent by Laytons, adverted to the fact that unless payment in the sum of 10,000 pounds was made by Friday, i.e., 19th October, 2012 and an acceptable proposal for the balance was sent, legal action would be taken against CIGSL for recovery of the unpaid invoices.

1.10 Apparently, in response to the aforementioned e-mail, vide e-mail dated 16th October, 2012, CIGSL informed Laytons that it will remit 10,000 pounds and pay the balance sum in five Equal Monthly Instalments. In the e-mail, a further assertion was made, to the effect, that CIGSL would receive funds on 19th October, 2012 and therefore, it would take several working days to remit the funds to Layton's account. Accordingly, the e-mail concluded by indicating that Laytons could expect first payment of 10,000 pounds on or before 26th October, 2012.

1.11 Since, this seemed like a reasonable offer, Laytons acknowledged the aforementioned e-mail within couple of hours and accordingly, thanked CIGSL for its response.

2. It appears that its hope of receiving funds was belied. On 30th October, 2012, Laytons sent another mail, wherein, it stated that it had received nothing towards the promised remittances and that CIGSL should confirm the details of remittances, as it was possible that the Bank was "sitting on it", an exp































































































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