2013 (1) TMI 1063 - HC - Companies Law

Summary

Issues Involved:

1. Refund of the amount for land short-delivered.
2. Consideration of separate plots for determining the shortfall.
3. Applicability of terms and conditions of sale.
4. Reliance on previous judgments and pending appeals.

Issue-wise Detailed Analysis:

1. Refund of the amount for land short-delivered:

The appellant sought a refund of Rs. 79,16,809.21, claiming that the land delivered was less than what was conveyed in the deed. Specifically, Final Plot No. 131 was found to be 9,569.50 sq meters instead of the 12,076 sq meters stated, resulting in a shortfall of 2,506.50 sq meters. The learned Company Court dismissed the application for a refund, considering the shortfall to be less than 5% of the total area of 57,254 sq meters, thus not substantial enough to warrant a refund. The Court relied on previous decisions where a shortfall of less than 5% was deemed insubstantial.

2. Consideration of separate plots for determining the shortfall:

The appellant argued that the plots, Final Plot Nos. 130 and 131, should have been considered separately. The shortfall in Final Plot No. 131 alone was about 19%, which, according to the appellant, should entitle them to a refund. However, the Court noted that the offer was composite for both plots, and the total area shortfall was less than 5% when combined. The Court held that the terms of the sale were clear, and the offer was not made for individual plots but for the combined area.

3. Applicability of terms and conditions of sale:

The sale was conducted on an 'as is where is and whatever there is basis,' as per the tender conditions. The appellant was expected to verify the measurements and records before purchase. The Court emphasized that the purchaser, having accepted these terms, could not later claim a refund based on discrepancies in land measurement. The Supreme Court's precedent in United Bank of India Vs. Official Liquidator was cited, highlighting that the Official Liquidator does not guarantee the property details and it is the purchaser's responsibility to conduct due diligence.

4. Reliance on previous judgments and pending appeals:

The appellant contested the reliance on a previous judgment (Company Application No. 427/2004), which was pending appeal. However, the Court noted that the appeal had since been dismissed, reinforcing the validity of the previous judgment. The Court found no error in the learned Company Judge's reliance on this precedent, as the context and legal principles applied were consistent with the current case.

Conclusion:

The appeal was dismissed, with the Court finding no error in the learned Company Court's decision. The shortfall in land delivery was not deemed substantial enough to merit a refund, given the terms of sale and the composite nature of the offer. The appellant's arguments regarding separate consideration of plots and reliance on pending appeals were not upheld. The decision emphasized the importance of adhering to the terms of sale and conducting thorough due diligence before purchase.