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TMI Blog2009 (12) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner company/Intending Lessee entered into an unregistered Agreement to Lease with the respondent company/Intending Lessor for opening a showroom in premises bearing No. FF-02, Omaxe Mall, Lawrence Road, Amritsar, Punjab, located on the First Floor, having a super area of approximately 220.306 square metres. The said Agreement has been annexed to the petition as "Annexure B". Clause 3 thereof states that the lease was initially for a period of 3 years, to be calculated from the date of the grant of a Completion Certificate by the concerned authorities, to be renewed for a further 2 terms of 3 years each at the option of the Intending Lessee, on terms and conditions to be mutually decided as per the Agreement. The respondent comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company was no longer interested in taking possession of the Demised Premises. By that notice, it was also stated that the petitioner company terminated the Agreement to Lease, and asked for a refund of the security deposit from the respondent within 15 days of receipt of the notice by the respondent. Proof of service of this notice is also on record. 5. It is the case of the petitioner that more than 20 months have lapsed since the date on which the Mall was supposed to be constructed and that, till date, the petitioner has not been handed over possession of the Demised Premises. A personal inspection of the construction site by officers of the petitioner company, photographic evidence of which has been annexed as "Annexure D" to this pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of refund of the aforesaid security deposit. 8. The petitioner then delivered a notice of winding up dated 2-5-2009 at the registered office of the respondent company in Delhi, proof of which is annexed to the petition as "Annexure F", calling upon the respondent to refund the amount of Rs. 4,97,991 and interest at the rate of 1.5 per cent from the date of the notice, as well as costs of sending the legal notices, which amounted to Rs. 11,000. The respondent did not reply to the said notice of winding up. 9. At the outset, it is a well-known principle that the respondent's failure to reply to the notice of winding up does not mean that winding up orders must invariably be passed. This Court has held in Resham Singh & Co. (P.) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities concerned. However, as construction of the Mall is yet incomplete, therefore, there is no question of grant of a Completion Certificate or the consequent execution of the Lease Deed. 11. An order of winding up on the ground that a company is unable to pay its debts is a discretionary remedy. In the instant case, the petitioner had deposited a certain amount of money as a security deposit, in terms of the Agreement between the parties. On the respondent's failure to fulfil its obligations under the said Agreement, the petitioner chose to terminate the Agreement by a written notice, and called for refund of the security deposit. In view of the fact that the Agreement to Lease was an unregistered document, as well as the fact that month ..... X X X X Extracts X X X X X X X X Extracts X X X X
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