9911796707
TMI Blog2016 (10) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... ril, 2014 entered into between the company and the petitioner whereunder the respondent company agreed to pay to the petitioner a sum of Rs. 18 crores towards surrender of rights to purchase two flats being flat nos.21NE and 22SW in a building to be constructed by the respondent. The agreement proceeds on the basis that on 12th May, 2011 the respondent company agreed to sell these two flats to the petitioner. However, due to various reasons the construction had not progressed. As a result, the parties have decided to cancel the agreement and the petitioner agreed to surrender its right to claim these two flats and in consideration thereof the respondent agreed to pay a sum of Rs. 18 crores. This is found to be recorded in clause (1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 014 the petitioner recorded an assurance of the respondent company that their dues would be paid and that remaining two cheques may not be presented on he due date. Accordingly the third and fourth cheques were not deposited relying upon this respondent's assurances. 3. Mr. Khandeparkar relied upon the repeated reminders contained in the letters dated 4th December, 2014, 31st January, 2015, 13th April, 2015 and 9th May, 2015 calling upon the respondents to pay over the amounts of the dishonoured cheques and or issue fresh cheque in lieu thereof. However, there was no reply to these letters, as a result the petitioner issued a statutory notice dated 13th June, 2015. 4. Admittedly, there is no reply to the statutory notice nor is there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner." He submitted that no consideration had flown from the petitioner to the respondent in the first place under the purported agreement for sale. He submitted that these agreements for sale do not exist. 5. In paragraph 6(d) Mr. Bookwala relies upon the averment that the petitioner admits that there was litigation in respect of the sanctioned plan of the building wherein the flats were to be housed and that the respondent had represented that the litigation was minor in nature and would be concluded in a few months. He also relies upon the averment in paragraph 7 to the effect that the petitioner entered into an agreement for sale relying upon these representations. Mr. Bookwala then made reference to the agreement of cancellation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere issued. As the records stands there is no response either any of the letters relied upon by the petitioners. There is no reply to the statutory notice and that is why the presumption that the respondent company is unable to pay debts as and when they arise in the usual course of business. 8. Having considered the contents of the petition, correspondence and the submissions made by the learned counsel, I am of the view that as far as the agreement is concerned, the fact that the option under clause (6) was exercised or at least is deemed to have been exercised is evident from the correspondence which demands payment of monies. In the circumstances, it is not open for the company to now contend that the petitioner could have sought perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oured. Exhibit H to the petition is a copy of the dishonour memo received by the petitioner from their bank along with the copy of the cheque dated 15th June, 2014 . This cheque is for a sum of Rs. 5.90 crores. The reason for dishonour is that the payment of the cheque was stopped by the drawer. This cheque was presented on 14th May, 2014 well within its validity and it seems to be dishonoured on or about 20th August, 2014 . Indeed there is no reply to the statutory notice or to this petition. The amount of Rs. 5.90 crores at least appears to be due and in the light of the above facts the respondent must be put to terms. In the circumstances, I pass the following order:- (i) The respondent company shall deposit a sum of Rs. 5.90 lakhs wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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