HIGH COURT OF JUDICATURE AT HYDERABAD

FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH

(SPECIAL ORIGINAL JURISDICTION)
COMPANY PETITION NO.

OF 2015

IN THE MATTER OF THE COMPANIES ACT, 1956 (1 OF 1956)

AND
IN THE MATTER OF SECTION 433 AND 434 OF THE COMPANIES ACT, 1956
AND
IN THE MATTER OF RCM INFRASTRUCTURE LIMITED LTD
Between:
M/s Metalmeccanica Fracasso India Pvt. Ltd
A 006, Kankia Western Edge II,
Western Express Highway, Borivali (East),
Mumbai 400066
Represented By its:
Deputy General Manager, Mr.Anil Bijitkar

Petitioner

And
M/s RCM Infrastructure Limited.
8-2-622/5/A2,
Indira Chambers, 2nd Floor,
Avenue -4, Road No.10, Banjara Hils,
Hyderabad, Andhra Pradesh 500034.
Represented by its Managing Director,
Mr.Koneru Subbaiah Chowdary

Respondent

PETITION FILED UNDER SECTION 433 (e) & (f) R/w. SECTIONS 434 (1) (a)
AND 439 OF THE COMPANIES ACT, 1956, READ WITH
THE COMPANY (COURT) RULES, 1959

1. The Petitioner above is a Private Limited Company which is a subsidiary of

the Fracasso Group based in Italy.

It is an ISO 9001 certified company

dealing in the manufacture, supply and export of Metal Crash Barriers,

Bridge Parapets, Ornamental Barriers, Pedestrian Barriers, etc. The
Petitioner Company is a reputed name in the Indian Barrier market. It is
submitted that the Petitioner Company was established as a Subsidiary in

India in the year 2003, with a Capital of USD 10 Million. It carries on its
business in India from its Registered Office situated at A 006, Kankia
Western Edge II, Western Express Highway, Borivali (East),Mumbai
400066.
2. It is submitted that Mr. Anil Bijitkar, Deputy General Manager of the
Petitioner Company is its authorized representative and is duly authorized
to sign and verify papers, swear affidavits, engage counsel, and do all other
things that may be necessitated for the successful pursuit of the matter. A
true copy of his authorization is annexed herewith as Annexure A.
3. The address of the Petitioner above named for the purpose of service of all
notices, summons, processes, etc. is that of its advocates, The Law Offices of
Sriram & Co., their office address being at Plot # 1361, Road # 45, Jubilee
Hills, Hyderabad- 34.
4. The Company above named, being the respondent Company, (hereinafter
known as the Respondent Company), was incorporated on 2nd of January,2009
at Hyderabad with an authorized Capital of Rs.150,000,000. The Certificate of
Incorporation, the Memorandum of Association of the Respondent Company
are annexed herewith as Annexure B and Annexure C.
5. The registered office of the Respondent Company is situated at Hyderabad,
and its address is as follows:
M/s RCM Infrastructure Limited
8-2-622/5/A2,
Indira Chambers, 2nd Floor,
Avenue -4, Road No.10, Banjara Hils,
Hyderabad, Andhra Pradesh 500034.

6. It is submitted that the Respondent Company belongs to the infrastructure

development sector and has a significant presence in various sectors in
India like highways, roads, waterworks, and other civil infrastructure works.

7. It is submitted that the Respondent Company is indebted to the Petitioner

Company for a sum of Rs.54,11,428/- (Rupees Fifty Four Lakhs Eleven
Thousand Four Hundred and Twenty Eight only), along with interest and
other contractual charges payable under the Purchase Order. The said
amount was demanded from the Respondent Company by the Petitioner
Company vide issuance of a Statutory Notice of demand on 7 th of January,
2014, which was issued to the Respondent Company. The said Statutory
Notice is attached as Annexure D.
8. The present petition has been necessitated because the Respondent
Company, which had availed the Petitioner Companys products, is no longer
able to clear its debts, and has become commercially insolvent. Set out in
the paragraphs below, are the details of the transaction between the parties
that will demonstrate that such is the case.
9. It is submitted that the Respondent Company had placed order for supply of
Metal Crash

Barriers, hereinafter

Said

Material,

for

its

work

at

Simgrampur, near Jabalpur, Madhya Pradesh, hereinafter Said Sites vide

Purchase

Order

dated

04.01.2013,

bearing

No.RCM/PUR/MP-

DJ/156/2012-13 for the total amount of Rs.68,37,740/- , hereinafter Said

Purchase Order. The Said Purchase Order is attached as Annexure E.
10.

It is submitted that on receipt of the said Purchase Order, the Petitioner

Company supplied to the Respondent Company the Said Material in the

stipulated time and accordingly the Petitioner Company raised and
submitted to the Respondent Company the Invoices and other relevant
documents for release of the actual consideration amount. The details of
Invoices raised to the Respondent Company are as follows :

S. no

Date

INV.No.

Invoice Value

Agreed Value

13/01/2013

2012000271

13,73,760.00

13,73,760.00

15/01/2013

2012000272

13,35,600.00

13,35,600.00

19/01/2013

2012000278

10,17,600.00

10,17,600.00

19/01/2013

2012000279

10,43,040.00

10,43,040.00

24/01/2013

2012000285

16,63,140.00

16,63,140.00

30/03/2013

MAH/2012-

1,28,800.00

1,28,800.00

31/05/2013

13/061
MAH/2013-

2,21,400.00

2,21,400.00

49,200.00

49,200.00

14/003
8

19/06/2013

MAH/201314/006

INVOICE

VALUE

68,32,540

The aforementioned invoices have been attached as Annexure F (Colly.).

11.

It is submitted that against the above said Total Invoice Amount against

Purchase Order, the Petitioner Company till date has received an amount of
Rs.45,00,000/- (Rupees Forty Five Lakhs Only) as part consideration and
leaving a balance payment of Rs.23,32,540/- (Rupees Twenty Three Lakhs
Thirty

Two

Thousand

Five

Hundred

and

Forty

Outstanding Amount Against Purchase Order,

Only),

hereinafter

to be paid by the

Respondent Company to the Petitioner Company.

12.

It is submitted that the total payable amount by the Respondent

Company to the Petitioner Company against the said Purchase Order was
Rs. 68,32,540/- (Rupees Sixty Eight Lakh, Thirty Two Thousand Five
Hundred Only). It is submitted that after much delay and after repeatedly
being approached by The Petitioner Company, the Respondent Company has

paid to the Petitioner Company a sum of Rs.45,00,000/- (Rupees Forty Five

Lakhs Only) as part consideration and leaving a balance payment of Rs.
Rs.23,32,540/- (Rupees Twenty Three Lakhs Thirty Two Thousand Five
Hundred and Forty Only), hereinafter Outstanding Amount Against
Purchase Order to be paid by the Respondent Company to the Petitioner
Company.
13.

It is submitted that as on 13.02.2015 the Respondent company owes the

Petitioner Company an amount of Rs.34,54,783 /- (Rupees Thirty Four

Lakhs Fifty Four Thousand Seven Hundred and Eighty Three Only). The
Debit Notes are attached as Annexure G. It is submitted that the Petitioner
has not issued the C-Form for Central Sales Tax purchase. It is submitted
we have sent mails to the Respondent Company for releasing the differential
Central Sales Tax along with penalized interest which will become due to the
Sales Tax Department. It is submitted that this differential and penalty
amounts to Rs.19,56,645/- (Rupees Nineteen Lakhs Fifty Six Thousand Six
Hundred and Forty Five Only.) The Respondent Company in a email dated
23.01.2015 stated that the delay in releasing the C-Forms is due to their
VAT TIN number being blocked. The email Correspondence is attached as
Annexure H. It is submitted that the total amount due to the Petitioner
Company is Rs. Rs.54,11,428/- (Rupees Fifty Four Lakhs Eleven Thousand
Four Hundred and Twenty Eight only).
14.

It is submitted that the Petitioner Company vide several emails has made

continuous requests and sent various reminders to the Respondent

Company for the release of the said Outstanding Amount for the Said
Material supplied by them. The aforementioned emails are attached as
Annexure I (Colly). The Respondent Company and its officials have
accepted and acknowledged the said Outstanding Amount due and payable

to the Petitioner Company and also that there exists an obligation and
payment liability on their behalf towards the Petitioner Company vide emails
dated 19th of November 2013 and 20th of November 2013. The aforementioned
emails are attached as Annexure J (Colly). It is further submitted that
despite such abovementioned acceptance and acknowledgement, the
Respondent Company has failed to pay the said Outstanding Amount to the
Petitioner Company.
15.

It is submitted that by making false and dishonest representations, the

Respondent Company has induced the Petitioner Company to supply the Said
Material to them as per their desire and wish. It is further submitted that the
Petitioner Company suspects that the Respondent Company never had any
bonafide, genuine or real intention to pay the Outstanding Amount to the
Petitioner Company.
16.

It is pertinent to state that the Petitioner Company had issued a

communication dated 13th November, 2013, to the Respondent Company,

affirming to the latter that it would be compelled to go to the site and take
back the materials that have been supplied, since the Respondent Company
had failed to clear the Petitioner Companys outstanding dues. However, no
response was received to this communication either, and as such, it would
be reasonable to infer that the Respondent Company, RCM Infrastructure
Limited., is no longer viable, and has become commercially insolvent. The
Respondent Company, therefore, deserves to be wound up in public interest.
17.

It is submitted that the Respondent Company, for the first time since the

issuance of the Statutory Notice, informed the Petitioner Company in vague,

unclear and obfuscating terms that the work done by the latter had been due
to bad quality of workmanship in a reply dated 21st of January 2014 vide
letter no. RCM/CO/COR/21/2013-14. The aforementioned reply letter is

attached as Annexure K. However, it is submitted that the representatives of

the Respondent Company approved the quality of the Workmanship after the
installation. It is further submitted that the Respondent Company has been
making vague excuses like the one in the above Reply and trying to evade
paying the Outstanding Amount to the Petitioner Company. Therefore it is
submitted that the nature and contents with respect to the Petitioner
Company in the abovementioned reply are completely false, untrue and
fictitious and are designed to malign the good name and reputation of the
Petitioner Company.
18.

The Registered Office of the Respondent Company is situated at

Hyderabad. Therefore, this Honble Court has the jurisdiction to entertain

this petition.
19.

The Petitioner Company has filed the present petition without any undue

delay and there is no other reason in law why the relief claimed should not
be granted.

The Petitioner Company, therefore, prays as follows:-

A.

That the Respondent Company, RCM Infrastructure Limited, may

be wound up by this Honble Court under the provisions of the
Companies Act, 1956, and

B.

Such other order/s may be passed, as in the circumstances, shall

be just.

COUNSEL FOR THE PETITIONER

HIGH COURT OF JUDICATURE AT HYDERABAD

FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
(SPECIAL ORIGINAL JURISDICTION)
COMPANY PETITION NO.

OF 2015

IN THE MATTER OF THE COMPANIES ACT, 1956 (1 OF 1956)

AND
IN THE MATTER OF SECTION 433 AND 434 OF THE COMPANIES ACT, 1956
AND
IN THE MATTER OF RCM INFRASTRUCTURE LIMITED LTD
Between:
M/s Metalmeccanica Fracasso India Pvt. Ltd
A 006, Kankia Western Edge II,
Western Express Highway, Borivali (East),
Mumbai 400066
Represented By its:
Deputy General Manager, Mr.Anil Bijitkar

Petitioner

And
M/s RCM Infrastructure Limited.
8-2-622/5/A2,
Indira Chambers, 2nd Floor,
Avenue -4, Road No.10, Banjara Hils,
Hyderabad, Andhra Pradesh 500034.
Represented by its Managing Director,
Mr.Koneru Subbaiah Chowdary

Respondent

AFFIDAVIT IN SUPPORT OF THE COMPANY PETITION

I,Anil Bijithkar, aged about 40 years, authorized officer of the petitioner
Company, Metalmeccanica Fracasso India, Pvt.Ltd., with its registered office at
A 006, Kanakia Western Edge II, Western Express highway, Borivali (East),
Mumbai 400066., do hereby solemnly affirm and state as follows :
1. I am the deponent and authorized signatory of the Petitioner Company
herein and as such I am well acquainted with the facts of the case. I am
authorized to depose this affidavit on behalf of this Petititioner. A true
copy of my Authorization to represent the Petitioner is enclosed.
2. The averments stated in the accompanying company petition are true to
the best of my knowledge and believed to be true.

3. The material papers filed in supports of the company petition are the
originals/true copies of the originals.
Sworn and Signed before me on this
Day of March,2015

Deponent

VERIFCATION
I,Anil Bijithkar, aged about 40 years, authorized officer of the petitioner
Company, Metalmeccanica Fracasso India, Pvt.Ltd., with its registered office at
A 006, Kanakia Western Edge II, Western Express highway, Borivali (East),
Mumbai 400066., do state that the contents mentioned in above paras are all
true and correct to the best of my knowledge and belief.
Hence verified here on this the

Counsel for the petitioner

day of March 2015.

Deponent