1993 (4) TMI 321 - HC - Indian Laws

Summary

Issues:
Petition for winding up based on delay in completion of construction work and alleged failure to pay stipulated sum.

Analysis:
1. The petitioner filed a winding-up petition against the builder for delay in completing the construction work as per the agreement. The petitioner claimed the respondent owed a stipulated sum of Rs. 3 lacs due to the delay.
2. The collaboration agreement authorized the respondent to develop the land and share the completed building equally. The petitioner cited clauses 20 and 29, emphasizing that any amendment required written agreement. The respondent referred to a Memorandum of Understanding extending the completion date.
3. The Memorandum mentioned the estimated cost of unfinished work and pending installments from flat buyers.
4. The petitioner did not disclose the Memorandum in the petition.
5. The agreement allowed the petitioner to retain Rs. 7 lacs interest-free until project completion, with the respondent to refund it. The petitioner claimed compensation for delay based on a clause in the agreement.
6. The petitioner was accused of concealing the Memorandum.
7. The clause specified Rs. 50,000 monthly indemnity for delays, with a provision for completion at the builder's cost if not completed within six months.
8. The petitioner argued the clause was for liquidated damages, citing Section 74 of the Indian Contract Act.
9. The court clarified that liquidated damages are pre-estimates of likely loss, with compensation not exceeding the named amount.
10. The respondent disputed the claim, citing incomplete aspects and the petitioner's actions, proposing to complete the project if cooperation was provided.
11. The court noted a genuine dispute between the parties.
12. Details about the constructed flats, pending sales, and ongoing legal matters were presented. Reference to a legal case was made to support the petitioner's claim.
13. The court found the winding-up petition not maintainable due to the unresolved dispute, dismissing it without prejudice to the petitioner's right to seek remedies in a civil court.