2015 (3) TMI 1034 - HC - Companies Law

Winding up petition under Sections 433(e) & (f), 434 and 439 of the Companies Act, 1956 - Default in refund amount - Substantial amount paid during the proceedings - Held that - In the present case, it is indisputable that the respondent was liable to refund the amount of ₹ 6,87,500/- to the petitioner. In view of the fact that the project in question had been delayed, the petitioner would, prima facie, be entitled to a refund of the amount paid from the date of payment. However, there can be no dispute that the petitioner would be entitled to interest on ₹ 3,50,000/- from 30.11.2009 and on ₹ 3,37,500/- from 05.12.2009 i.e. the dates on which the respondent promised to refund the said amounts to the petitioner. In the present case, it is undisputable that the respondent has failed to pay its debts despite a notice under Section 434(1)(a) of the Act. Thus, the present petition is liable to be admitted. However, in view of the fact that the respondent has paid substantial amount of debt (Rs. 5,00,000/-) to the petitioner during the course of the present proceedings 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.

Issues Involved:
1. Whether the respondent company is liable to be wound up under Sections 433(e) & (f), 434, and 439 of the Companies Act, 1956.
2. Whether the petitioner's claim is barred by limitation.
3. Whether the respondent's defense regarding the forfeiture of the initial deposit and penalty is bona fide.
4. Whether the respondent is liable to pay interest on the amount claimed by the petitioner.
5. Whether the winding up court has the jurisdiction to award interest on the admitted amount.

Issue-wise Detailed Analysis:

1. Liability for Winding Up:
The petitioner filed for winding up of the respondent company under Sections 433(e) & (f), 434, and 439 of the Companies Act, 1956, alleging the respondent's failure to pay debts. The court noted that the petitioner paid Rs. 6,87,500 for a Duplex Villa in 2006-2007, which the respondent acknowledged. Due to delays, the petitioner sought a refund, but only Rs. 70,000 was refunded initially. The respondent paid an additional Rs. 5,00,000 during the proceedings. The court held that the respondent's failure to pay the remaining amount despite statutory notice under Section 434(1)(a) deemed it unable to pay its debts, thus admitting the petition for winding up.

2. Limitation of Claim:
The respondent argued that the petitioner's claim was barred by limitation as the amount was paid in 2006-2007. However, during proceedings, the respondent conceded that the claim was not barred by limitation due to Section 19 of the Limitation Act, 1963, which acknowledges part payments as extending the limitation period.

3. Defense of Forfeiture and Penalty:
The respondent contended that the petitioner failed to pay further installments and penal interest, leading to forfeiture of the initial deposit. However, the court found this defense to be a sham, as the respondent, in a letter dated 04.05.2009, assured the petitioner of a full refund by specified dates. The court noted no further communication from the respondent disputing its liability, and the statutory notice elicited no response, undermining the respondent's defense.

4. Liability to Pay Interest:
The respondent argued that there was no agreement for interest payment, thus it should not be considered a debt under Section 433(e). The court rejected this, referring to the Supreme Court's ruling in Vijay Industries v. NATL Technologies Ltd., which allows winding up courts to consider interest on admitted debts. The court held that the respondent's failure to pay the agreed amounts warranted interest, especially as the respondent had itself demanded interest on delayed payments from the petitioner.

5. Jurisdiction to Award Interest:
The court affirmed its jurisdiction to award interest on the admitted amount, citing the Supreme Court's decision in Vijay Industries and a Division Bench ruling in M-Tech Developers Ltd. v. Swapna Bhattacharya. The court emphasized that winding up proceedings could determine interest and its rate, applying the principle of restitution. The court awarded interest at 12% per annum from the dates the respondent promised to refund the amounts.

Conclusion:
The court admitted the winding up petition, directing the respondent to pay the balance amount with 12% interest per annum from the specified dates. The respondent was given four weeks to comply, failing which the petition would be admitted, and necessary orders would follow. The court also directed the registry to release the deposited amount to the petitioner and continued the restraint order till the petition's disposal.

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