M/S Tecnotree Convergence Private Limited vs.m/s Cellcast Interactive India Private Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/1209217
CourtDelhi High Court
Decided OnSep-21-2017
AppellantM/S Tecnotree Convergence Private Limited
RespondentM/S Cellcast Interactive India Private Limited
Excerpt:
$~ * in the high court of delhi at new delhi % reserved on:13. h september, 2017 pronounced on:21. t september, 2017 + co.pet. 61/2015, and ca no.268-269/2015 m/s tecnotree convergence private limited ........ petitioner through : ms.veronica mohan and mr.aranya moulick, advocates. versus m/s cellcast interactive india private limited ..... respondent through : mr.dinesh rastogi and ms.harshita agarwal, advocates. coram: hon'ble mr. justice yogesh khanna yogesh khanna, j.1. the petitioner company is a global provider of telecom, it solutions and services. the petitioner provides a broad range of services/solutions for management of products, customers and revenue. one of the telecom it solution provided by the petitioner is the transmission of messages and information, through short message service (sms) which may be classified as push and pull services. the push service allows sending promotional messages/notifications via sms to mobile numbers/customers/ users and whereas the pull service allows mobile users/customers to send a keyword via sms to a co.pet. no.61/2015 page 1 of 16 predefined short code for services like bidding, contests, quiz and receive reply/information via sms.2. the respondent company is a company providing services in the field of interactive and participative television broadcasting among other services and it claims to be a pioneer in developing integrated participation content in the fast growing indian mobile and interactive tv market. the respondent broadcasts/broadcasted popular chat shows and quiz shows on television and allows the viewers to participate in the said television program/chat/quiz shows through interactive telephonic technology, thus making an interactive and participative for television audiences.3. the respondent contracted the petitioner to use the petitioner’s proprietary software “mdx+” for the support of certain services required by the respondent. the application services provider agreement was entered into between the parties on 05.06.2007. vide the said agreement the respondent sought the following services of the petitioner (a) push and pull services; (b) i-@@ sms gateway; (c) keyword creation; (d) report; (e) integration; (f) migration; (g) lifetree asp (lasp) on the terms and conditions set forth in the agreement. the services provided by the petitioner to the respondent were sms services; sms short codes; bulk/promo push; mt billing support; smsc gateway; administrative gui; online reports and mis reports etc. as is mentioned in the petition. co.pet. no.61/2015 page 2 of 16 4. clause 5.1 of the agreement provide the said services to the respondent would be given for a fee as under. table 1 sl no.description inr sms services a. set up fee (one time) 3,00,000 [to be paid within fort five (45) days of installation and link going live]. b. revenue share to... petitioner a. up to 5 million sms per 1.80% of net month revenue of cellast b. over 5 million sms and up to 1.65% of net 10 million sms per month revenue of cellast c. above 10 million sms per 1.50% of net month revenue of cellast “minimum guaranteed revenue: notwithstanding anything contained herein above, cellcast shall pay to lifetree minimum guaranteed revenue exclusive of all taxes (“minimum guaranteed revenue”), starting from the day implementation starts as per the table below, co.pet. no.61/2015 page 3 of 16 description minimum guarantee for first 3 months rs. 2,50,000 per month for next 3 months rs. 3,00,000 per month from the 7th month onwards rs. 4,00,000 per month beyond the minimum guaranteed revenue, the share will be calculated by referring to the table 1” 5. clause 5.6 of the agreement is as under:"5.6 payment schedule and terms • monthly invoices shall be raised by lifetree, which will be sent to cellcast by the 5th (fifth) of every month. payment against the monthly invoices will be made by cellcast within ninety (90) days of receipt of the invoice raised by life tree. • all other payments for professional services fee shall be due within thirty (30) working days of receipt of lifetree 's invoice.6. the petitioner provided the services to the respondent as per the terms agreed from the effective date as given in the agreement and raised invoices for all the services availed by the respondent. on 05.06.2009 the agreement expired but the petitioner continued providing services to the respondent and then on 12.01.2011 the parties renewed the agreement to their business relationship and an addendum to the said agreement was made. it was made effective from 06.06.2009, though executed on 12.01.2011. clause 1.2(a) of the said addendum stated that co.pet. no.61/2015 page 4 of 16 for the period of 05.06.2009 to 30.06.2010 the fee chargeable for the said service would remain the same as provided in the initial agreement dated 5.6.2007. however, the fee chargeable for the period from 01.07.2010 is as under: sl. no.description amount (in inr) 1 2 3 sms services charges charges monthly (minimum guarantee) in case sms mo traffic does not exceed 20 lacs in a month monthly (minimum guarantee) in case sms mo traffic exceeds 20 lacs in a month revenue share to tecnotree: beyond the minimum guaranteed revenue, the revenue share will be calculated as given below a) up to 5 million sms per month b) over 5 million sms and up to10 million sms per month 2.50,000 4,00,000 1.80 % of net revenue of cell cast 1.65% of net revenue of cell cast c) above 10 million sms per month 1.50 % of net revenue of co.pet. no.61/2015 page 5 of 16 bandwidth usage for promotional/ bulk sms sent by cell cast charges cell cast rs. 0.01 for every 15 promotional / bulk sms sent by cellcast 7. clause 1.3 of the addendum provide that the invoices would be raised on the 5th day of every month. "monthly invoices shall be raised by tecnotree, which will be sent to cellcast by the 5th (fifth) of every month. payment against the monthly invoices will be made by cellcast within thirty (30) days of receipt of the invoice raised by tecnotree." though the invoices were raised from time to time but the respondent failed to make the payment and always sought time for clearing the balance payment. the last payment was made on 28.05.2012 against the invoices dated 11.07.2011, 11.08.2011 and 11.09.2011 and though the respondent on many occasions initiated talks of a one time settlement and even proposed a format for repayment but did not pay anything and thus the invoices towards the monthly charges from july 2011 to june 2013 have not been cleared despite the petitioner having providing the said services to the respondent during this period. various e-mails were exchanged wherein the respondent promised to clear its dues and ultimately a legal notice dated 27.08.2014 was sent to respondent to which no reply was given by the respondent. the respondent thus has to pay an amount of `58,68,000 towards outstanding dues which is an co.pet. no.61/2015 page 6 of 16 admitted debt but the respondent failed to pay the amount despite requests and demands. the statement of account is annexure p-6 (colly) and the copies of the invoices are annexure p-7 colly.8. perusal of the e-mails exchanged between the parties would reveal that the respondent have been taking time to make payments every month. some of its e-mails are as under: email dated 10.11.2011 at 05.46pm “from: mahesh b [mailto:maheshb@cellcast.in]. sent: thursday, november 10, 2011 5:46 pm cc: sorabh gupta; prashant singh parihar subject: re: cellcast - payment for tecnotree invoices hello mr vidyasankar, we are making all efforts to release the same at the earliest .due to some cash flow pressure the same is getting delayed. please don't worry we shall do the needful soon. thanks”; email dated 17.12.2011 at 12.53pm 'venkat'; “from:maheshb@cellcast.in [mailto:maheshb@cellcast.in]. sent: wednesday, december 07, 2011 12:53 pm to: vidyasankar g; pravin@cellcast.in; alok@cellcast.in :: sorabh gupta; prashant singh parihar; shashi kumar p v subject: re: cellcast - payment for tecnotree invoices i understand there has been an inadvertent delay from end in releasing the pmts. we are keeping this on high priority and shall try and clear as much possible in dec. thanks”; co.pet. no.61/2015 page 7 of 16 email dated 21.02.2012 at 12.56pm “from: mahesh b [mailto:maheshb@cellcast.in]. sent: tuesday, february 21, 2012 12:44 pm to: shashl kumar p v; alok@cellcast.in cc: vidyasankar g; venkat@cellcast.in subject: re: cellcast- payment for tecnotree invoices sure will expedite and try and release some funds by the end of febimarh first week .some cash flow pressure right now, will resolve . thanks”; email dated 07.03.2012 at 12.08pm vidyasankar g; venkat@cellcast.in; “from: mahesh b [mailto:maheshb@cellcast.in]. sent: wednesday, march 07, 2012 12:08 pm to: pankaj@cellcast.in;. alok@cellcast.in cc: shashi kumar p v; sorabh gupta subject: re: cellcast - payment for tecnotree invoices hi mr vidyasankar, apologies for this inordinate but inadvertent delay .i understand it's been a while that we released any payment to you rest assured we are taking all possible measures to bring the payments online and will need your support for a few more days .we shall definitely try and release further payments by around march 15th ( maximum possible) . once again thank you for the understanding . thanks mahesh”; email dated 10.04.2012 at 04.57pm “from: alok [mailto:alok@cellcast.in) sent: tuesday, april 10, 2012 4:57pm to: shashi kumar p v cc: sorabh gupta; vidyasankar g; venkat@cellcast.in; 'pravin'; pankaj@cellcast,in subject: re: cellcast - payment for tecnotree invoices hi shashi, co.pet. no.61/2015 page 8 of 16 we have processed an interim payment of rs 2.5 lakhs. we have also drawn up a schedule which i shall share with you within next 2 days. regards, alok yadav”; email dated 14.05.2012 at 10.41am “from: alok [mailto:alok@cellcast.in]. sent: monday, may 14, 2012 10:41 am to: shashl kumar p v cc: vldyasankar g; syjit@cellcast.in; pankaj thakar subject: re: cellcast - payment for tecnotree invoice~ hi shashi, subsequent to our conversation 1 am sending this email. as you are well aware with the current trai amendment cellcast is finding it extremely to conduct its normal broadcast activities and we have decided to downscale and partially shut down our operations. with this move we are proposing that we are proposing a one-time settlement figure of rs 12 lakhs against the current outstanding and thereon work with the bare minimum setup to keep the short code alive . this is an earnest request considering the force majeure circumstances that the trai price point amendment has landed us in. hence please accept this offer of the one-time settlement and revert to this email at the earliest. regards, alok yadav”; email dated 06.07.2012 at 00.35am from: shashi kumar p v [mallto:shashi.kumar@tecnotree.com]. sent:06. july 2012 00:35 to: alok cc: vidyasankar g subject: re: cellcast • payment for tecnotree invoices hi alok, co.pet. no.61/2015 page 9 of 16 subsequent to our discussions, we have discussed internally with our senior management. below is our proposal: • tecnotree has raised invoices till mar 2012 already and the revenue has already been booked in tecnotree books. hence, providing discount on pending invoices would not be possible. • cellcast to pay all pending payments till mar 2012 (rs.16,54,500) by 31st jul2012 as per the invoice amount. [alok yadav) cellcast shall clear all the pending payments for the amount of inr1654,500 as per the invoiced amount. this payment shall be cleared as soon as possible. currently we are in the process of raising funds and with/ the next jew weeks we should be able to tide over the crisis. [tecnotree 1]. structured payment option provided is time based. request you to provide specific date for clearing outstanding payments till march 201.2. structured payment option is worked on the pretext that cellcast shall clear outstanding invoices in a short timeframe; email dated 10.08.2012 at 2.52pm from: alok [mailto:alok@cellcast.in]. sent: friday, august 10, 2012 2:52 pm to: shashi kumar p v cc: vidyasankar g; pankaj thakar subject: re: cellcast- payment for tecnotree invoices dear shashi, sorry about not responding earlier as we have been busy with efforts to revive our business. on clearing outstanding payments till mar 2012 i have checked with finance and they have indicated as sept 15 2012 the date by which the pending payments can be cleared. for clearing the bills from april 2012 to july 2012 we will need time till oct 2012 on account of the co.pet. no.61/2015 page 10 of 16 pressure that we have pertaining to the allocation of funds. regards the services to cellcast at rs. 11akh per month for the period apr 2012 to dec 2012 can we look at getting thing extended by another 6 months. we still have our business revival pressures which are forcing to give this suggestion. i hope you can prevail upon your management the relationship that cellcast and tecnotree share. on 53003xxxx i shall start the integration process with the operators and keep vidya informed about this once it gets going. regards, alok; longevity of considering the email dated 18.09.2012 at 07.29pm sent: tuesday, september 18, 2012 7:23 pm to: shashi kumar p v cc: vidyasankar g; 'pankaj thakar' subject: re: cellcast - payment for tecnotree invoices hi shashi, i would like to appraise you that we are in the final stages of raising funds to revive our organization. the current funds situation is however still tight and i have got the assurance that the payment would be only be possible in the first wee of october 2012. we hope you and your finance management team bear with us during this crisis situation. hope to your management and we will definitely abide by our commitment once the funds situation improves, regards, alok yadav vp technology; this email acts as an assurance co.pet. no.61/2015 page 11 of 16 email dated 06.11.2012 at 16.47pm from: alok [mailto:alok@cellcast.in]. sent:06. november 2012 16:47 to: 'shashi kumar p v' cc: 'vidyasankar g'; 'pankaj thakar' subject: re: cellcast- payment for tecnotree invoices hi shashi/vidya, as i mentioned in my discussion with vidya we are very near to closing our funding. this will ensure that we can revive our business and thus we should be able to honour our outstanding payments to tecnotree. since the funding process will culminate within the next 2-3 weeks we should be able to honour our payments by this month end. we do acknowledge that you have kept our service live on sms and hence we request you to bear with us till the month end. regards, alok yadav vp technology cellcast interactive india pvt. ltd mumbai india tel. 91 22 40832104 fax. 91 22 40832109 mobile 91 9820796063 email. alok@cellcast.in web. www.cellcast.in email dated 06.12.2012 at 12.03pm sent: thursday, december 06, 20i:l 12:03 pm to: shashi kumar pv; vidyazank.:lr g cc: 'pankaj thakar' subject: re: cellcast- payment for tecnotree invoices hi shashi/vidya, finally our efforts of reviving the firm are bearing fruit and we are in the final stages of raising funds. co.pet. no.61/2015 page 12 of 16 1 am sending across this schedule of payments that we shall release. please note that we have stopped our operations since aug 2012 and hence we cannot clear the entire set of outstanding payments at a single go. dec-12 jan-13 feb-13 mar-13 apr-13 2,50,000 2,50,000 2,50,000 2,50,000 2,50,000 this has affected our cash we are aware that the above mentioned funds are outstanding for a long time but with the regulatory environment we had to withdraw all our business properties and flow completely. regards, alok yadav vp technology cellcast interactive india pvt. ltd mumbai india tel. 91 22 40832104 hence the petitioner alleges that the respondent company has lost 9. its substratum.10. in reply, the respondent had denied the allegations and referred to clause 11.6 of the agreement which is a force majeure clause alleging the trai (telecom regulatory authority of india) since has increased its rates reducing the profit margin of the respondent company to a low, the business of the respondent was severally hit and because of this force majeure condition the contract was terminated by the petitioner vide an e-mail dated 25.09.2012 and hence the petitioner therefore is not entitle to the service charges after may, 2012 onwards. however the respondent has no answer as to why it was accepting the services of the petitioner even after may, 2012 on a proposed reduced rate till 2013 when the co.pet. no.61/2015 page 13 of 16 contract was allegedly cancelled. the defense of the respondent that the petitioner agreed to charge `1,00,000/- per month for the services for a period from april, 2012 to december, 2012 so the amount due as alleged is wrong but it failed to answer such concession was only given by the petitioner on a condition that arrears would be cleared by the respondent in a timely schedule and as the respondent failed to pay a single penny to the petitioner, it would not be entitled to such concessions, if any. the respondent has heavily relied upon an e-mail dated 25.09.2012 sent by the petitioner and it notes: “ we once again request you to clear all the pending amounts within 30 days failing which the agreement between the tecnotree and cellcast stands terminated at the end of 30th day from date of this communication. the termination shall be subject to provisions in that regard as provided in the agreement. please consider this as a notice of such termination…” 11. no doubt the petitioner sent this e-mail on 25.09.2012 but admittedly the respondent continued accepting services by the petitioner till 2013 and thus this e-mail can be read only as a coercive measure of the petitioner to make the respondent comply with its payment schedule, given by respondent itself.12. the second contention raised is the petition being signed by company secretary-mr.kiran gowda allegedly empowered by a board resolution dated 14.11.2014 whereas the name of the petitioner company was changed to the present one only on 03.12.2014, hence resolution dated 14.11.2014 could not have been passed prior to 03.12.214 or lest it needed to be ratified after 03.12.2014. it is pertaining co.pet. no.61/2015 page 14 of 16 to mention the earlier name of the petitioner was lifetree convergence limited which was later changed to its present name on 03.12.2014 viz. tecnotree convergence private limited. such a change of name can not happen in a day as there is a procedure laid for it. such change of name needs to be applied and only on completion of formalities the new name is allotted. it takes time. the board resolution passed on 14.11.2014 do show the petitioner company was in the process of getting its name changed to the present one; had already applied it on the day board resolution and that the management being the same even after such change of name. hence it would not entitle the respondent to withheld the just payments of the petitioner. it was never a ground taken by the respondent in its correspondence viz., emails. it rather show the respondent being in cash crunch situation, hence neglected to pay the just dues of the petitioner without any justifiable or sufficient cause, hence the respondent company is liable to be wound up.13. the respondent company in its e-mail dated 06.12.2012 rather agreed to pay `12,50,000 to the petitioner in a timely manner and even could not pay such amount.14. in the petition there is no reason why this petition be not admitted. hence is admitted.15. citation be published in the "statesman" (english edition) and "jansatta" (hindi edition) in accordance with company (court) rules, 1959. co.pet. no.61/2015 page 15 of 16 16. however, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount of `58,68,000/- due and payable to the petitioner with interest at the rate of 8% per annum with effect from 26.05.2002 when the statutory notice was served on the respondent company. the amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the provisional liquidator.17. list on 13.03.2018. yogesh khanna, j september21 2017 du co.pet. no.61/2015 page 16 of 16
Judgment:

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on:

13. h September, 2017 Pronounced on:

21. t September, 2017 + CO.PET. 61/2015, and CA No.268-269/2015 M/S TECNOTREE CONVERGENCE PRIVATE LIMITED ........ Petitioner

Through : Ms.Veronica Mohan and Mr.Aranya Moulick, Advocates. versus M/S CELLCAST INTERACTIVE INDIA PRIVATE LIMITED ..... Respondent Through : Mr.Dinesh Rastogi and Ms.Harshita Agarwal, Advocates. CORAM: HON'BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA, J.

1. The petitioner company is a global provider of Telecom, IT solutions and services. The petitioner provides a broad range of services/solutions for management of products, customers and revenue. One of the Telecom IT solution provided by the petitioner is the transmission of messages and information, through short message service (SMS) which may be classified as Push and Pull Services. The Push service allows sending promotional messages/notifications via SMS to mobile numbers/customers/ users and whereas the Pull service allows mobile users/customers to send a keyword via SMS to a CO.PET. No.61/2015 Page 1 of 16 predefined short code for services like bidding, contests, quiz and receive reply/information via SMS.

2. The respondent company is a company providing services in the field of interactive and participative television broadcasting among other services and it claims to be a pioneer in developing integrated participation content in the fast growing Indian mobile and interactive TV market. The respondent broadcasts/broadcasted popular chat shows and quiz shows on television and allows the viewers to participate in the said television program/chat/quiz shows through interactive telephonic technology, thus making an interactive and participative for television audiences.

3. The respondent contracted the petitioner to use the petitioner’s proprietary software “MDX+” for the support of certain services required by the respondent. The Application Services Provider Agreement was entered into between the parties on 05.06.2007. Vide the said agreement the respondent sought the following services of the petitioner (a) Push and Pull Services; (b) I-@@ SMS Gateway; (c) Keyword Creation; (d) Report; (e) Integration; (f) Migration; (g) Lifetree ASP (LASP) on the terms and conditions set forth in the agreement. The services provided by the petitioner to the respondent were SMS Services; SMS Short Codes; Bulk/Promo push; MT Billing support; SMSC gateway; Administrative GUI; Online reports and MIS reports etc. as is mentioned in the petition. CO.PET. No.61/2015 Page 2 of 16 4. Clause 5.1 of the agreement provide the said services to the respondent would be given for a fee as under. Table 1 Sl No.Description INR SMS Services A. Set up fee (one time) 3,00,000 [To be paid within fort five (45) days of installation and link going live]. B. Revenue Share to... Petitioner

a. Up to 5 million SMS per 1.80% of Net Month revenue of Cellast b. Over 5 million SMS and up to 1.65% of Net 10 million SMS per month revenue of Cellast c. Above 10 million SMS per 1.50% of Net Month revenue of Cellast “Minimum Guaranteed Revenue: Notwithstanding anything contained herein above, Cellcast shall pay to Lifetree minimum guaranteed revenue exclusive of all taxes (“Minimum Guaranteed Revenue”), starting from the day implementation starts as per the table below, CO.PET. No.61/2015 Page 3 of 16 DESCRIPTION MINIMUM GUARANTEE For first 3 months Rs. 2,50,000 per month For next 3 months Rs. 3,00,000 per month From the 7th month onwards Rs. 4,00,000 per month Beyond the minimum guaranteed revenue, the share will be calculated by referring to the Table 1” 5. Clause 5.6 of the agreement is as under:

"5.6 Payment schedule and terms • Monthly invoices shall be raised by Lifetree, which will be sent to Cellcast by the 5th (fifth) of every month. Payment against the monthly invoices will be made by Cellcast within ninety (90) days of receipt of the invoice raised by Life tree. • All other payments for Professional Services Fee shall be due within thirty (30) working days of receipt of Lifetree 's invoice.

6. The petitioner provided the services to the respondent as per the terms agreed from the effective date as given in the agreement and raised invoices for all the services availed by the respondent. On 05.06.2009 the agreement expired but the petitioner continued providing services to the respondent and then on 12.01.2011 the parties renewed the agreement to their business relationship and an Addendum to the said agreement was made. It was made effective from 06.06.2009, though executed on 12.01.2011. Clause 1.2(a) of the said Addendum stated that CO.PET. No.61/2015 Page 4 of 16 for the period of 05.06.2009 to 30.06.2010 the fee chargeable for the said service would remain the same as provided in the initial agreement dated 5.6.2007. However, the fee chargeable for the period from 01.07.2010 is as under: Sl. No.Description Amount (in INR) 1 2 3 SMS services Charges Charges Monthly (Minimum Guarantee) in case SMS MO traffic does not exceed 20 lacs in a month Monthly (Minimum Guarantee) in case SMS MO traffic exceeds 20 lacs in a month Revenue share to Tecnotree: Beyond the minimum guaranteed revenue, the revenue share will be calculated as given below a) Up to 5 million SMS per month b) Over 5 million SMS and Up to10 million SMS per month 2.50,000 4,00,000 1.80 % of Net Revenue of Cell cast 1.65% of Net Revenue of Cell cast c) Above 10 million SMS per month 1.50 % of Net Revenue of CO.PET. No.61/2015 Page 5 of 16 Bandwidth usage for promotional/ Bulk SMS sent by Cell cast charges Cell cast Rs. 0.01 for every 15 promotional / Bulk SMS sent by Cellcast 7. Clause 1.3 of the Addendum provide that the invoices would be raised on the 5th day of every month. "Monthly invoices shall be raised by Tecnotree, which will be sent to Cellcast by the 5th (fifth) of every month. Payment against the monthly invoices will be made by cellcast within thirty (30) days of receipt of the invoice raised by Tecnotree."

Though the invoices were raised from time to time but the respondent failed to make the payment and always sought time for clearing the balance payment. The last payment was made on 28.05.2012 against the invoices dated 11.07.2011, 11.08.2011 and 11.09.2011 and though the respondent on many occasions initiated talks of a one time settlement and even proposed a format for repayment but did not pay anything and thus the invoices towards the monthly charges from July 2011 to June 2013 have not been cleared despite the petitioner having providing the said services to the respondent during this period. Various e-mails were exchanged wherein the respondent promised to clear its dues and ultimately a legal notice dated 27.08.2014 was sent to respondent to which no reply was given by the respondent. The respondent thus has to pay an amount of `58,68,000 towards outstanding dues which is an CO.PET. No.61/2015 Page 6 of 16 admitted debt but the respondent failed to pay the amount despite requests and demands. The statement of account is annexure P-6 (colly) and the copies of the invoices are annexure P-7 colly.

8. Perusal of the e-mails exchanged between the parties would reveal that the respondent have been taking time to make payments every month. Some of its e-mails are as under: email dated 10.11.2011 at 05.46PM “From: Mahesh B [mailto:maheshb@Cellcast.in]. Sent: Thursday, November 10, 2011 5:46 PM Cc: Sorabh Gupta; Prashant Singh Parihar Subject: RE: Cellcast - Payment for Tecnotree invoices Hello Mr Vidyasankar, We are making all efforts to release the same at the earliest .Due to some cash flow pressure the same is getting delayed. Please don't worry we shall do the needful soon. Thanks”; email dated 17.12.2011 at 12.53PM 'Venkat'; “From:maheshb@cellcast.in [mailto:maheshb@cellcast.in]. Sent: Wednesday, December 07, 2011 12:53 PM To: Vidyasankar G; pravin@cellcast.in; alok@cellcast.in :: Sorabh Gupta; Prashant Singh Parihar; Shashi Kumar P V Subject: Re: Cellcast - Payment for Tecnotree invoices I understand there has been an inadvertent delay from end in releasing the pmts. We are keeping this on high priority and shall try and clear as much possible in Dec. Thanks”; CO.PET. No.61/2015 Page 7 of 16 email dated 21.02.2012 at 12.56PM “From: Mahesh B [mailto:maheshb@cellcast.in]. Sent: Tuesday, February 21, 2012 12:44 PM To: Shashl Kumar P V; alok@cellcast.in Cc: Vidyasankar G; venkat@cellcast.in Subject: RE: Cellcast- Payment for Tecnotree invoices Sure will expedite and try and release some funds by the end of FebiMarh first week .Some cash flow pressure right now, will resolve . Thanks”; email dated 07.03.2012 at 12.08PM Vidyasankar G; venkat@cellcast.in; “From: Mahesh B [mailto:maheshb@cellcast.in]. Sent: Wednesday, March 07, 2012 12:08 PM To: pankaj@cellcast.in;. alok@cellcast.in Cc: Shashi Kumar P V; Sorabh Gupta Subject: RE: Cellcast - Payment for Tecnotree invoices Hi Mr Vidyasankar, Apologies for this inordinate but inadvertent delay .I understand it's been a while that we released any payment to you rest assured we are taking all possible measures to bring the payments online and will need your support for a few more days .We shall definitely try and release further payments by around March 15th ( maximum possible) . Once again thank you for the understanding . Thanks Mahesh”; email dated 10.04.2012 at 04.57PM “From: Alok [mailto:alok@cellcast.in) Sent: Tuesday, April 10, 2012 4:57PM To: Shashi Kumar P V Cc: Sorabh Gupta; Vidyasankar G; venkat@cellcast.in; 'Pravin'; pankaj@cellcast,in Subject: RE: Cellcast - Payment for Tecnotree invoices Hi Shashi, CO.PET. No.61/2015 Page 8 of 16 We have processed an interim payment of Rs 2.5 lakhs. We have also drawn up a schedule which I shall share with you within next 2 days. Regards, Alok Yadav”; email dated 14.05.2012 at 10.41AM “From: Alok [mailto:alok@cellcast.in]. Sent: Monday, May 14, 2012 10:41 AM To: Shashl Kumar P V Cc: Vldyasankar G; syjit@cellcast.in; Pankaj Thakar Subject: RE: Cellcast - Payment for Tecnotree Invoice~ Hi Shashi, subsequent to our conversation 1 am sending this email. As you are well aware with the current TRAI Amendment Cellcast is finding it extremely to conduct its normal Broadcast activities and we have decided to downscale and partially shut down our Operations. With this move we are proposing that we are proposing a one-time settlement figure of Rs 12 lakhs against the current outstanding and thereon work with the bare minimum setup to keep the short code alive . This is an earnest request considering the Force Majeure circumstances that the TRAI price point amendment has landed us in. Hence please accept this offer of the one-time settlement and revert to this email at the earliest. Regards, Alok Yadav”; email dated 06.07.2012 at 00.35AM From: Shashi Kumar P V [mallto:shashi.kumar@tecnotree.com]. Sent:

06. July 2012 00:35 To: Alok Cc: Vidyasankar G Subject: RE: Cellcast • Payment for Tecnotree invoices Hi Alok, CO.PET. No.61/2015 Page 9 of 16 Subsequent to our discussions, we have discussed internally with our senior management. Below is our proposal: • Tecnotree has raised invoices till Mar 2012 already and the revenue has already been booked in Tecnotree books. Hence, providing discount on pending invoices would not be possible. • Cellcast to pay all pending payments till Mar 2012 (Rs.16,54,500) by 31st Jul2012 as per the invoice amount. [Alok Yadav) Cellcast shall clear all the pending payments for the amount of INR1654,500 as per the Invoiced amount. This payment shall be cleared as soon as possible. Currently we are In the process of raising funds and with/ the next jew weeks we should be able to tide over the crisis. [Tecnotree 1]. Structured payment option provided Is time based. Request you to provide specific date for clearing outstanding payments till March 201.2. Structured payment option is worked on the pretext that Cellcast shall clear outstanding invoices in a short timeframe; email dated 10.08.2012 at 2.52PM From: Alok [mailto:alok@cellcast.in]. Sent: Friday, August 10, 2012 2:52 PM To: Shashi Kumar P V Cc: Vidyasankar G; Pankaj Thakar Subject: RE: Cellcast- Payment for Tecnotree invoices Dear Shashi, Sorry about not responding earlier as we have been busy with efforts to revive our business. On clearing outstanding payments till Mar 2012 I have checked with Finance and they have indicated as Sept 15 2012 the date by which the pending payments can be cleared. For clearing the bills from April 2012 to July 2012 we will need time till Oct 2012 on account of the CO.PET. No.61/2015 Page 10 of 16 pressure that we have pertaining to the allocation of funds. Regards the services to Cellcast at Rs. 11akh per month for the period Apr 2012 to Dec 2012 can we look at getting thing extended by another 6 months. We still have our business revival pressures which are forcing to give this suggestion. I hope you can prevail upon your Management the relationship that Cellcast and Tecnotree share. On 53003xxxx I shall start the Integration process with the Operators and keep Vidya informed about this once it gets going. Regards, Alok; longevity of considering the email dated 18.09.2012 at 07.29PM Sent: Tuesday, September 18, 2012 7:23 PM To: Shashi Kumar P V Cc: VIdyasankar G; 'Pankaj Thakar' Subject: RE: Cellcast - Payment for Tecnotree invoices Hi Shashi, I would like to appraise you that we are in the final stages of raising funds to revive our organization. The current funds situation is however still tight and I have got the assurance that the payment would be only be possible in the first wee of October 2012. We hope you and your Finance Management team bear with us during this crisis situation. Hope to your Management and we will definitely abide by our commitment once the funds situation improves, Regards, Alok Yadav VP Technology; this email acts as an assurance CO.PET. No.61/2015 Page 11 of 16 email dated 06.11.2012 at 16.47PM From: Alok [mailto:alok@cellcast.in]. Sent:

06. November 2012 16:47 To: 'Shashi Kumar P V' Cc: 'Vidyasankar G'; 'Pankaj Thakar' Subject: RE: Cellcast- Payment for Tecnotree invoices Hi Shashi/Vidya, As I mentioned in my discussion with Vidya we are very near to closing our funding. This will ensure that we can revive our business and thus we should be able to honour our outstanding payments to Tecnotree. Since the funding process will culminate within the next 2-3 weeks we should be able to honour our payments by this month end. We do acknowledge that you have kept our service live on SMS and hence we request you to bear with us till the month end. Regards, Alok Yadav VP Technology Cellcast Interactive India Pvt. Ltd Mumbai India Tel. 91 22 40832104 Fax. 91 22 40832109 Mobile 91 9820796063 Email. alok@cellcast.in Web. www.cellcast.in email dated 06.12.2012 at 12.03PM Sent: Thursday, December 06, 20I:l 12:03 PM To: Shashi Kumar PV; Vidyazank.:lr G Cc: 'Pankaj Thakar' Subject: Re: Cellcast- Payment for Tecnotree Invoices Hi Shashi/Vidya, Finally our efforts of reviving the firm are bearing fruit and we are in the final stages of raising funds. CO.PET. No.61/2015 Page 12 of 16 1 am sending across this schedule of payments that we shall release. Please note that we have stopped our operations since Aug 2012 and hence we cannot clear the entire set of Outstanding payments at a single go. Dec-12 Jan-13 Feb-13 Mar-13 Apr-13 2,50,000 2,50,000 2,50,000 2,50,000 2,50,000 this has affected our Cash We are aware that the above mentioned funds are outstanding for a long time but with the Regulatory environment We had to withdraw all our business properties and flow completely. Regards, Alok Yadav VP Technology Cellcast Interactive India Pvt. Ltd Mumbai India Tel. 91 22 40832104 Hence the petitioner alleges that the respondent company has lost 9. its substratum.

10. In reply, the respondent had denied the allegations and referred to clause 11.6 of the agreement which is a force majeure clause alleging the TRAI (Telecom Regulatory Authority of India) since has increased its rates reducing the profit margin of the respondent company to a low, the business of the respondent was severally hit and because of this force majeure condition the contract was terminated by the petitioner vide an e-mail dated 25.09.2012 and hence the petitioner therefore is not entitle to the service charges after May, 2012 onwards. However the respondent has no answer as to why it was accepting the services of the petitioner even after May, 2012 on a proposed reduced rate till 2013 when the CO.PET. No.61/2015 Page 13 of 16 contract was allegedly cancelled. The defense of the respondent that the petitioner agreed to charge `1,00,000/- per month for the services for a period from April, 2012 to December, 2012 so the amount due as alleged is wrong but it failed to answer such concession was only given by the petitioner on a condition that arrears would be cleared by the respondent in a timely schedule and as the respondent failed to pay a single penny to the petitioner, it would not be entitled to such concessions, if any. The respondent has heavily relied upon an e-mail dated 25.09.2012 sent by the petitioner and it notes: “ We once again request you to clear all the pending amounts within 30 days failing which the agreement between the Tecnotree and Cellcast stands terminated at the end of 30th day from date of this communication. The termination shall be subject to provisions in that regard as provided in the Agreement. Please consider this as a notice of such termination…” 11. No doubt the petitioner sent this e-mail on 25.09.2012 but admittedly the respondent continued accepting services by the petitioner till 2013 and thus this e-mail can be read only as a coercive measure of the petitioner to make the respondent comply with its payment schedule, given by respondent itself.

12. The second contention raised is the petition being signed by Company Secretary-Mr.Kiran Gowda allegedly empowered by a Board Resolution dated 14.11.2014 whereas the name of the petitioner company was changed to the present one only on 03.12.2014, hence Resolution dated 14.11.2014 could not have been passed prior to 03.12.214 or lest it needed to be ratified after 03.12.2014. It is pertaining CO.PET. No.61/2015 Page 14 of 16 to mention the earlier name of the petitioner was Lifetree Convergence Limited which was later changed to its present name on 03.12.2014 viz. Tecnotree Convergence Private Limited. Such a change of name can not happen in a day as there is a procedure laid for it. Such change of name needs to be applied and only on completion of formalities the new name is allotted. It takes time. The board resolution passed on 14.11.2014 do show the petitioner company was in the process of getting its name changed to the present one; had already applied it on the day Board resolution and that the management being the same even after such change of name. Hence it would not entitle the respondent to withheld the just payments of the petitioner. It was never a ground taken by the respondent in its correspondence viz., emails. It rather show the respondent being in cash crunch situation, hence neglected to pay the just dues of the petitioner without any justifiable or sufficient cause, hence the respondent company is liable to be wound up.

13. The respondent company in its e-mail dated 06.12.2012 rather agreed to pay `12,50,000 to the petitioner in a timely manner and even could not pay such amount.

14. In the petition there is no reason why this petition be not admitted. Hence is admitted.

15. Citation be published in the "Statesman" (English edition) and "Jansatta" (Hindi edition) in accordance with Company (Court) Rules, 1959. CO.PET. No.61/2015 Page 15 of 16 16. However, publication of the citation and appointment of the provisional liquidator is deferred and one opportunity is given to the respondent company to pay the amount of `58,68,000/- due and payable to the petitioner with interest at the rate of 8% per annum with effect from 26.05.2002 when the statutory notice was served on the respondent company. The amount be paid within one month failing which the petitioner shall be entitled to publish the citation and apply for appointment of the Provisional Liquidator.

17. List on 13.03.2018. YOGESH KHANNA, J SEPTEMBER21 2017 DU CO.PET. No.61/2015 Page 16 of 16