TMI Blog2014 (6) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount demanded by the petitioner was due and payable by the respondent to the petitioner. The project for which the money had been collected from the petitioner had, admittedly, not taken off. And, the agreement between the parties had unequivocally provided that the amounts collected would be refunded with interest @ 9% per annum, in such eventuality. In the given circumstances, the contention that the terms and conditions as agreed were limited to only provisional booking cannot be accepted. It is difficult to appreciate the contention that even though the respondent had received funds on account of a contract which it did not perform, yet it could retain the same. - There is no document on record that indicates that such an agreement had taken place between the parties. It is also relevant to note that by a letter dated 12.12.2009, the respondent had attempted to suggest that the settlement between the parties was limited to the respondent repaying only Rs. 50,000/-. This had been refuted by the petitioner in no uncertain terms by its letter dated 18.12.2009 and the petitioner had called upon the respondent to pay the balance sum of Rs. 2,47,000/-. It is only, thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of payment of such advance, subject to my/our giving you a 30 days notice of the same. 2.2 The petitioner states that subsequent to the registration, the petitioner had also made a payment of further sum of Rs. 1,48,500/-. Thus, in aggregate the petitioner had paid a sum of Rs. 2,97,000/- to the respondent company. The aforementioned project could not take off and consequently the petitioner sought refund of the amount paid to the respondent. Pursuant to the request made by the petitioner, the respondent sent a letter dated 22.10.2008 forwarding an Application Form for Refund to the petitioner. The respondent called upon the petitioner to sign the said application form in order that the refund could be processed. The petitioner signed the said application form as required by the respondent and forwarded the same to the respondent. In spite of receiving the request for refund in the form as specified by the respondent, the respondent failed and neglected to make the payment. 2.3 Thereafter, the petitioner sent several reminders to the respondent, however, most of them were not replied to. Finally, the petitioner was constrained to cause a legal notice to be issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. Finally, the petitioner caused a notice dated 27.10.2012, under Section 434(1)(a) of the Companies Act, 1956, to be served upon respondent company, calling upon the respondent company to refund the balance sum of Rs. 1,72,000/- along with interest, in terms of the agreement, failing which the petitioner would be constrained to initiate proceedings for winding up of the respondent company. The said statutory notice dated 27.10.2012 was also not responded to by the respondent company. 3. The learned counsel for the petitioner has contended that the facts demonstrate that the respondent had failed and neglected to pay the admitted amounts due and payable by the respondent company to the petitioner. It was contended that in the given circumstances, the present petition was liable to be admitted. 4. First of all, the learned counsel for the respondent submitted that the present petition was not maintainable as the same was contended to be barred by limitation. The respondent submitted that the booking of the residential unit was made by the petitioner in 2007 and thereafter, there had been no acknowledgment of debt by the respondent company. It was submitted by the learned co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also pointed out that the respondent had also assured the petitioner that the balance payment as demanded by the petitioner would be paid as early as possible. The counsel for the petitioner has relied on the letters dated 12.12.2009 and dated 30.01.2010 sent by the respondent company. 8. I have heard the learned counsel for the parties. 9. The facts of this case clearly indicate that there is no dispute that the petitioner had paid a sum of Rs. 2,97,000/- to the respondent. There is also no dispute that the project Eastern Home in respect of which the said sum had been accepted by the respondent, had not progressed as scheduled. Even according to the respondent, the said project had not taken off. This is clearly indicated in the letter dated 04.08.2009 sent by the respondent, which states that the project could not take off because of Government policy. 10. These facts alone are sufficient to indicate that the respondent owed an obligation to refund the amount to the petitioner. 11. It is also not disputed that the petitioner had sought a refund, of the amounts paid by him, from the respondent. The respondent had clearly accepted its liability to refund the amount a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the specific character of the said liability may not be indicated in words in the statement, the same would amount to an acknowledgement. In the case of Food Corpn. of India v. Assam State Co-operative Marketing Consumer Federation Ltd. [2004] 12 SCC 360, the Supreme Court has held as under: 14. According to Section 18 of the Limitation Act, an acknowledgement of liability made in writing in respect of any right claimed by the opposite party and signed by the party against whom such right is claimed made before the expiration of the prescribed period for a suit in respect of such right has the effect of commencing a fresh period of limitation from the date on which the acknowledgement was so signed. It is well settled that to amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act, it need not be accompanied by a promise to pay either expressly or even by implication. 15. The statement providing foundation for a plea of acknowledgement must relate to a present subsisting liability, though the exact nature or the specific character of the said liability may not be indicated in words. The words used in the acknowledgement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, that the respondent had made further payments. It is apparent from the above that this was not the first time that the respondent had attempted to raise such a false plea. The defence that there was a mutual settlement under which the respondent had to pay only a sum of Rs. 1,25,000/- is not borne out by the records or supported by any credible evidence. It is clear that that this defense is a concocted defense with no element of truth in it. 18. In view of the forgoing, it is apparent that the respondent is unable to pay its admitted debt. The petition is accordingly admitted. The petitioner is directed to publish the advertisement of this petition in The Statesman (English) and Jansatta (Hindi) for a hearing to be held on 29.05.2014. The Citations be also published in the Delhi Gazette . 19. The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company. The Directors of the respondent company are directed to file the Statement of Affairs within a period of 21 days from today. The Managing Director shall also file an affidavit indicating the current addresses of all the offices of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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