Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2012 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2012 (12) TMI 107 - HC - Companies LawClaim of liquidated damages - Consequences for breach of the contract - winding up petition filed on account of alleged dues - can an amount of unexpired lock-in period be treated as debt ? - Held that:- The petitioner is claiming payment on the basis of lock-in period mentioned in the Master Service Agreement (MSA) with respect to the sites procured by the respondent from the petitioner. Winding up petition is filed on that basis. The defence of the respondent is that it does not own any definite or certain amount to the petitioner and there is no admitted debt and also mentioned that he has already tendered an amount of Rs.1.13 Crores to the petitioner and, therefore, the petition has become infructuous. It is clear that no doubt the respondent had, to some extent, accepted its fault and also stated in reply dated 9.2.2010 that delay for completion of the project was result of lack of inflow of funds. However, on reading of reply dated 9.2.2010, one cannot say that the respondent had accepted its fault in entirety. Loans from banks/financial institutions could not be raised due to non-availability of title deeds of the project land which was to be deposited with the bank for creating equitable mortgage etc. Moreover, even if breach is accepted and the clause relating to liquidated damages gets triggered, still the obligation of the petitioners to prove that because of non-completion of the project in time, it has suffered some loss though proof of actual loss may not be required. In the communication dated 9.2.2010 itself, the respondent highlighted that there were no willing buyers in the market. Therefore, it cannot be said that even if this area in constructing form was made available to the petitioner, it could have been able to sell the same. Therefore, of the opinion that at present, having regard to the legal position explained above, 'debt' has not got crystallized and the matter needs evidence. Thus dismiss this petition. Where the premises were given by the petitioner to the respondent on license basis vide lease and license agreement dated 18.2.2008. Lock-in period of 33 months was prescribed and the entire amount is claimed on account of premature termination of agreement by the respondent. The petitioner is claiming total amount of the lock-in period. It is nowhere stated as to how it has suffered any loss on this account and whether the liquidated damages stipulated in the agreement are genuine pre-estimate damages,the consequence of that would be to dismiss this petition as well.
|