TMI Blog2015 (3) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... and has further deposited a sum of ₹ 48,750/- with this Court, I deem it appropriate to give an opportunity to the respondent to pay the balance amount to avoid any adverse order. The respondent shall also pay interest at the rate of 12% on the amount payable to the petitioner w.e.f. 30.11.2009 on ₹ 3,50,000/- and w.e.f. 05.12.2009 on ₹ 3,37,500/-. The amount already paid by the respondent to the petitioner would be adjusted from the principal outstanding. The respondent shall pay the amount as directed within four weeks from today. In the event that the respondent fails to pay the amount as directed (alongwith interest) within a period of four weeks from today, the petition would stand admitted and necessary orders would follow. - CO. PET. NO. 517 OF 2012 CA NOS. 2114 OF 2012, 1125 & 617 OF 2013 - - - Dated:- 7-5-2014 - VIBHU BAKHRU, J. Chandra Shekhar for the Petitioner. Raman Duggal for the Respondent. JUDGMENT 1. The present petition has been filed by the petitioner under Sections 433(e) (f), 434 and 439 of the Companies Act, 1956 (hereinafter referred to as 'Act') inter alia praying for winding up of the respondent company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent refunded an amount of ₹ 70,000/- to the petitioner by a cheque no.584115 dated 28.01.2010. 2.4 Thereafter, the petitioner issued a legal notice dated 25.09.2010 to the respondent demanding the balance amount of ₹ 6,17,500/- along with interest, however, the respondent failed to pay the balance amount. In the given circumstances, the petitioner issued a statutory notice dated 25.08.2012 under Section 434(1)(a) of the Act calling upon the respondent company to pay the balance amount of ₹ 6,17,500/- along with interest at the rate of 24% per annum. Although, the said notice is stated to have been served on the respondent company, the respondent company neither responded to the said notice nor paid the balance amount. Therefore, the petitioner filed the present winding up petition. 2.5 It is relevant to mention that during the course of proceeding, the respondent company paid a sum of ₹ 5,00,000/- to the petitioner, as directed by this Court by an order dated 12.07.2013, without prejudice to its rights. The respondent company had also deposited a sum of ₹ 48,750/- with this court as directed by an order dated 01.08.2013. 3. The counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt under Section 433(e) of the Act. In support of this contention, the counsel for the respondent has relied upon Jyothi Ltd. v. Boving Fouress Ltd. [2001] 33 SCL 736 (Kar.), V.K. Jain v. Richa Laboratories (P.) Ltd. [1993] 78 Comp. Cas. 283 (Delhi) and Bhajan Singh Samra v. Wimpy International Ltd.: [Company Appeal No.42 of 2012, decided on 18-5-2012]. 7. I have heard the learned counsel for the parties. 8. In the present case, it is an admitted fact that the petitioner had paid an amount of ₹ 6,87,500/- to the respondent towards the booking of the Duplex Villa in the year 2006 2007. It is not disputed that there was a delay in construction of the project as the respondent had informed the petitioner regarding completion of the Floor of Villa on 18.02.2009 i.e. after almost 2 years from the date of the last installment paid. It is also not disputed that the petitioner surrendered the said Villa on 04.05.2009 and the respondent, on 28.01.2010, refunded a sum of ₹ 70,000/- i.e. part of the amount due to the petitioner. 9. Considering the above facts, the issue to be considered in the present case is whether the defence raised by the respondent towards the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, admittedly, due and payable by the respondent. Besides the said amount, the petitioner would also be entitled to a reasonable interest as the sums paid by the petitioner have been utilised by the respondent. The respondent had itself demanded interest at the rate of 20% in the event the demanded installment of ₹ 4,37,500/- was not paid within a period of 15 days from the date of the demand. 13. The learned counsel for the respondent has submitted that in cases where interest is payable in terms of a contract between parties, a failure on the part of a company to pay the same would attract the provisions of section 433(e) of the Act and a winding up court can consider the same as failure to pay an admitted debt. However, he contended that in cases where the contract between the parties did not contain any stipulation for payment of interest, it would not be within the jurisdiction of a winding up court to either award interest on admitted amounts or even construe the failure to pay the same as inability on the part of a company to pay its debts. I am unable to accept this contention as it is now well settled that in the winding up proceedings where the debt is admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed by this Court in Bhajan Singh Samra (supra), wherein reliance has also been placed on the judgment of a learned Single Judge of this Court in Devendra Kumar Jain (supra). 14. The amount of interest awarded by the learned Company Judge at the rate of 12% per annum also appears to us to be reasonable and proper and we see no reason to interfere therewith. 15. The Division Bench also considered the cases relied upon by the respondent in the present case, and rejected the contention of the respondent that question of interest should be left to be determined by a civil court. Further, a Single Judge of this Court in the case of Devendra Kumar Jain v. Polar Forgings Tools Ltd. [1995] 84 Comp. Cas. 766 has held as under:- the creditor need not be forced to initiate separate litigation for recovery of the interest amount and the interest amount can be determined by the Company Judge in the winding up proceedings and on failure of the company to pay that amount the Company can be ordered to be wound up on the ground that it is unable to pay its debts. 16. In the present case, it is indisputable that the respondent was liable to refund the amount of ₹ 6,87,500/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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