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TMI Blog2012 (10) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... no.4 and its Directors are held guilty of committing contempt of this court. Since the principal amount was paid by the respondent in various instalments, therefore, so as to ascertain what exact amount would be payable by the respondent, so far the pendente lite interest is concerned, that requires proper calculation. Before this court is called upon to take further decision to award sentence against the respondents no. 1 to 3, it is deemed appropriate and in the interest of justice to offer an opportunity to the respondents no. 1 to 4 to pay amount of the interest i.e. pre-suit amount @18% p.a which would be on the principal amount of Rs. 5,75,00,000/- and the interest @6% p.a. on the principal amount as is found outstanding based on the aforesaid discussion, after giving an adjustment of the payments made by the petitioner through the said 16 cheques - Direction to clear off the entire outstanding dues within a period of three months from the date of this order and necessary orders on the sentence as well as on the fate of Sale Deeds which were executed after the passing of the interim order shall be passed by this court after completion of three months period. - CCP Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deed. ii. 2947 square meters of residential land situated at village Mohiuddinpur Kanawani, Tehsil Dadri, District Gautam Budh Nagar (UP) sold in favour of M/s Amba Realtors Pvt. Ltd., 279, AGCR Enclave, Delhi - 110092/ Contemnor No. 6 on 20.08.2008 vide registered sale deed. iii. 2469 square meters of residential land situated at Village Mohiuddinpur Kanawani, Tehsil Dadri, District Gautam Budh Nagar (UP) sold in favour of M/s Amba Realtors Pvt. Ltd., 279, AGCR Enclave, Delhi - 110092/ Contemnor No. 6 on 20.08.2008 vide registered sale deed. iv. 1 acres of agricultural land situated at Village Arthala, Tehsil and District Ghaziabad sold in favour of M/s S.R.K. Realtors (P) Ltd., 270, AGCR Enclave, Delhi - 110092/Contemnor No. 8 on 02.01.2009 vide registered sale deed. 2. It is also contended by the petitioner that the aforesaid properties have been sold by the Respondents No. 1 to 4 in violation of the interim order dated 15.9.2006 passed by this Court in the winding up petition despite being fully aware of the said interim order. The petitioner further contended that sale of the said properties by the respondents no. 1 to 4 clearly constitute wilful disobedience o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court can exercise the discretion to order interest at such rate as the Court may deem reasonable on the principal sum adjudged and the principal sum would be the sum which would include the amount of the interest which was over due as on the date of the filing of the suit. The contention raised by the counsel for the petitioner was that so far the pre suit interest is concerned, the Court cannot interfere with the rate of interest as was agreed between the parties but can adjudge the rate of interest, which the Court may deem reasonable, from the date of the filing of the suit till realization of the same, in the exercise of discretionary power conferred under Section 34 of the CPC, 1908. The counsel further argued that the loan advanced by the petitioner was not in the nature of personal or friendly loan to the respondent but the said loan advanced by the petitioner was a commercial loan on which the respondents are liable to pay interest @ 18% per annum. Counsel also argued that both the contempt petitions filed by the petitioner are within the period of limitation, as the same were filed by the petitioner within a period of one year from the date of knowledge of the execution o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al outstanding amount and only dispute left between the parties was the payment of interest for which the respondents have been giving various proposals to the petitioner showing their willingness to pay reasonable rate of interest from the date of the filing of the suit till the payment of the said principal amount. The learned counsel for the Respondents 1 to 4 also submitted that even as on date these respondents are willing to pay interest @ 6% per annum on the said outstanding amount from the date of the filing of the said petition till its final disposal or any other rate of interest as this Court may deem just and reasonable in the circumstances of the case. The counsel also argued that the petitioner cannot maintain a combined application i.e. under Section 542 of the Companies Act, 1956 along with Contempt petition under Sections 11 and 12 of the Contempt of Court Act,1971 as the parameters for invoking both the said provisions are different. Counsel further contended that the contempt petitions filed by the petitioner are also not maintainable as the same are not filed by the petitioner within the prescribed period of limitation of one year as the interim order was passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t will not declare such a sale as nullity as any such order will not benefit either of the parties and nor even the petitioner. In support of his arguments counsel for the respondent No.7 placed reliance on the case A.K. Chatterjee v. Ashok Kumar Chatterjee [2009] 156 DLT 475 (Delhi), where it has been held that the act of execution of sale deed in violation of interim order of this court in a case, should be of such a nature as to be an impediment in the decision of the suit or grant of a decree as claimed by the plaintiff. Therefore, the knowledge of the applicants thereof is not relevant for the purposes of deciding against the subsequent purchaser, is such subsequent purchaser is for value and has acted in good faith and without notice of the original Contract between the parties. 10. Adopting the same arguments, Mr. Anil Gupta, Ld. counsel representing Respondent Nos. 5, 6, 8 in addition also submitted that the petitioner had not taken any care to inform the Revenue Authorities about the said restraint order passed by this Court and had the petitioner been diligent in this regard then these respondents would not have purchased the said properties/plots forming subject matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. As can be seen from the above, the said order was passed by the company court in the presence of the counsel representing the respondent No.4 company and therefore the respondent nos.1 to 3 being the Directors of respondent no.4 were well aware of the said interim restraint order passed by the company court. It is quite apparent from the proceedings in the main petition that the respondent had been seeking adjournment on various occasions. The process of settlement between the parties can be seen to have begun from 26.3.2007 as the order passed on the said date by the company court records the request of the counsel for the respondent who stated that there is likelihood of meeting the liability of the petitioner which could not be finalized on account of non-availability of one of the Directors. Taking note of the said request made by the counsel for the respondent, the learned Company Judge adjourned the matter for 17.4.2007 with the observation that in case the matter is not settled, then the learned counsel for the respondent no. 4 will have to address the arguments. Then on 17.4.2007, the learned counsel for the respondent no.4 had given 16 cheques to the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting contempt of this court. 16. The other controversy raised in this contempt petition is as to whether the amount of Rs.5,75,00,000/- paid by the respondent should be adjusted against the principal amount or the same should be first adjusted against the interest amount leaving the principal amount as outstanding. To support the argument that the said amount should be first adjusted against the interest, counsel for petitioner has placed reliance on Smithaben H. Patel (supra). The legal position as canvassed by the counsel for the petitioner cannot be disputed as in the absence of any agreement, any payment made by the creditors has to be first adjusted against the amount of interest and then against the principal amount. Having said this, this court can hardly believe that no settlement talks had taken place between the parties and the respondent had made payment of Rs. 5,75,00,000/- without there being any understanding. It is not fathomable that the respondent would make the payment of amount which is exactly equivalent to the principal amount as has been claimed by the petitioner in the winding up petition. It is thus quite evident that the petitioner and the respondent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional apology of the respondents no. 1 and 2 be accepted. Indisputably, the conduct of the aforesaid respondents, as delineated above, is not of such a nature as may be termed as condonable. 17. So far the rate of interest is concerned as already discussed above, the respondent is liable to pay interest @18% p.a. so far as the pre suit period is concerned. However, pendent lite and future interest @ 6% can be awarded in the exercise of discretion by this court under Section 34 of the Code of Civil Procedure. Since the principal amount was paid by the respondent in various instalments, therefore, so as to ascertain what exact amount would be payable by the respondent, so far the pendente lite interest is concerned, that requires proper calculation. Before this court is called upon to take further decision to award sentence against the respondents no. 1 to 3, it is deemed appropriate and in the interest of justice to offer an opportunity to the respondents no. 1 to 4 to pay amount of the interest i.e. pre-suit amount @18% p.a which would be on the principal amount of Rs. 5,75,00,000/- and the interest @6% p.a. on the principal amount as is found outstanding based on the aforesaid d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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