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2016 (1) TMI 671 - HC - Companies LawWinding up of the respondent company sought on the ground that liquidated damages - Held that:- In Manju Bagai vs. Magpie Retail Ltd., [2010 (11) TMI 845 - DELHI HIGH COURT] inter-alia held that whether a particular clause about predetermined liquidated damages represents genuine covenanted pre-estimate of damages or it is in the nature of penalty has to be judged in the facts of each case and in the background of relevant factors which are case specific. The party claiming it may have to prove actual damages suffered. After applying the aforesaid enunciation of law, Delhi High Court dismissed all the petitions. If the principles of law as laid down by Delhi High Court are considered in the facts of the present case, it is evident that winding up of the respondent company is being sought on the ground that liquidated damages as mentioned in the business agreement have not been paid. The petitioner company has not been able to show that the same is on account of pre-estimated genuine damages, rather the amount as has been mentioned establishes that it is a kind of penalty and a penal stipulation cannot be enforced in the absence of any proof of actual loss, which a party to the contract is bound to make good to the other party. For the reasons mentioned above, the amount of damages claimed cannot be said to be admitted debt on account of which the respondent company can be directed to be wound up. The present petition is accordingly dismissed.
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