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TMI Blog2015 (3) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... and bookings were invited from general public by circulation of brochures.' 2.2 On the basis of the said advertisements, the petitioner had applied for a Duplex Villa measuring 250 sq. yds. at the said housing project and paid an initial amount of Rs. 3,50,000/- to the respondent company by a cheque being cheque no.927939 dated 09.06.2006. The respondent company acknowledged the same and issued a receipt bearing no.2049 dated 20.06.2006 for the said amount. The balance payment was to be made in installments and the respondent company raised a further demand of Rs. 3,37,500/- towards first installment on 20.01.2007. The petitioner deposited the said amount by a cheque being cheque no.051129 dated 24.10.2007 and the respondent company acknowledged the same and issued a receipt bearing no.14788 dated 05.12.2007 to this effect. 2.3 Undisputedly, the project was delayed. And, due to delay in the project, the petitioner surrendered the said Duplex Villa, by an application dated 04.05.2009 and applied for refund of the amount paid to the respondent company. Along with the said application, the petitioner also submitted original payment receipts no.2049 and 14788 and other documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - along with interest to the petitioner. Therefore, in these circumstances, the present petition needs to be admitted. 4. The respondent company, while refuting the claim of the petitioner, had stated in its reply to the winding up petition that the amount in question was paid to the respondent in the year 2006 & 2007 and since more than three years had elapsed, therefore, the claim of the petitioner is barred by limitation. However, during the course of present proceeding, the learned counsel for the respondent conceded that the present proceedings were not barred by the limitation in view of Section 19 of the Limitation Act, 1963. 5. It is further contended that the respondent duly informed the petitioner, by a letter dated 18.02.2009, regarding completion of the Floor of Villa and demanded a further installment for a sum of Rs. 4,37,500/- due and payable by the petitioner as per the construction linked plan. Since, the petitioner failed to pay the said installment within a period of 15 days from the date of demand, the respondent by its letter dated 03.04.2009 imposed a penalty for a sum of Rs. 68,750/- i.e. penal interest at the rate of 20% of the demanded installment. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d letter is extracted as under:- "You have submitted original of surrender paper with all documents and your receipt No. 2049, 14788 dated 20.06.2006 & 05.12.2007. We hereby assure you that we will issue demand draft Rs. 3,50,000 on 30.11.2009 and 3,37,500 on 05.12.2009 against surrender of the booking M-Tech Project (CG-I)." 10. It is relevant to mention here that there was no further communication on the part of the respondent whereby the respondent disputed its liability towards the petitioner. In fact, on 28.01.2010, the respondent made a part payment for an amount of `70,000/- to the petitioner. Further, the statutory notice issued under section 434(1)(a) of the Act to the respondent also elicited no response from the respondent. Therefore, by virtue of section 434(1)(a) of the Act, the respondent is deemed to be unable to pay its debts. In the given circumstances, the present petition is liable to be admitted. 11. The respondent had refunded an amount of Rs. 70,000/- to the petitioner in 2010 and paid a further sum of Rs. 5,00,000/- during the course of the present proceedings. Therefore, the respondent is, undisputedly, liable to refund the balance sum of Rs. 1,17,500/- t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised thereabout or there exists a dispute as regards quantity or quality of supply or such other defences which are available to the purchaser; but it is another thing to say that although the dues as regards the principal amount resulting from the quantity or quality of supply of the goods stands admitted but a question is raised as to whether any agreement had been entered into for payment of interest or whether the rate of interest would be applicable or not. In the latter case, in our opinion, the application for winding up cannot be dismissed." 14. Recently, a Division Bench of this Court in respondent's own case, in M-Tech Developers Ltd. v. Swapna Bhattacharya [Co. App. No.22 of 2014, decided on 21-04-2014] relying upon the decision of the Supreme Court in the case of Vijay Industries (Supra) has also held that in the winding up proceedings, the Company Judge is empowered to determine the question of interest and the rate thereof on applying the principle of the restitution. The court held as under:- "13. We accordingly affirm the findings of the learned Company Judge on the aspect of interest payable to the Respondent and reject the contention of the Appellant that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of the present proceedings and has further deposited a sum of Rs. 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 Rs. 3,50,000/- and w.e.f. 05.12.2009 on Rs. 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. 18. The Registry is directed to make over the amount of Rs. 48,750/-deposited by the respondent with this Court within a period of one week from today. 19. 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. 20. List for compliance on 09.07.2014. CA Nos. 2114/2012 & 1125/2013 21. In view of the above, the restraint order dated 30.05.2013 is directed to continue till the disposal of the present petition and the order dated 01.08.2013 is vacated. Accordingly, CA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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