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2014 (5) TMI 20 - DELHI HIGH COURTWinding up of the respondent company - Inability to pay debts - respondent company has failed and neglected to pay the amounts due and payable to the petitioner - whether the amount calculated by the respondent is admittedly due and payable to the petitioner - Held that:- Admittedly, the respondent had received the sum of Rs. 3,75,000/- towards booking of a residential flat. The said payment was made to the respondent in terms of a construction linked plan as advertised and agreed by the respondent - The respondent demanded a sum of Rs. 2,25,000/- (12% of the consideration) by its letter dated 21.12.2006. The said letter further put the petitioner to notice that if the payment as demanded was not made within a period of 30 days, the petitioner would be liable to pay penal interest at the rate of 20% P.A. Respondent has failed to fulfill its obligation and is not in a position to handover the possession of the flat in respect of which the amount of Rs. 3,75,000/- had been accepted. Admittedly, the petitioner was only obliged to pay 20% of the consideration till the commencement of construction as per the construction linked plan. The amount of booking and the first installment was also demanded and accepted by the respondent as being 20% of the consideration (computed for a flat of 1500 Sq. ft. at the rate of Rs. 1250 per Sq ft.) for a flat measuring 1500 sq ft. It is thus, not open for the respondent to contend that it was not obliged to hand over a flat measuring 1500 Sq ft. A allotment letter for such flat was issued to the petitioner on 22.11.2007 and there has been no further communication by the respondent whereby the said allotment has been sought to be altered in any manner. On the contrary, respondent called upon the petitioner to pay the balance sum due immediately, by its letter dated 09.01.2012 - defence raised by the respondent that he is not liable to repay the amount of Rs. 3,75,000/- to the petitioner is not credible - contention canvassed on behalf of the respondent is clearly without any merit and is ex-facie a sham defence raised only to avoid the obligation to refund the amount collected by the respondent - The petitioner would also be entitled to a reasonable interest as the sums paid by the petitioner have been utilised by the respondent - Decided partly in favour of appellant.
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