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TMI Blog2014 (4) TMI 1199X X X X Extracts X X X X X X X X Extracts X X X X ..... uld stand admitted and necessary orders would follow. 2. At the outset, Mr. Raman Duggal, the counsel for the Appellant stated that though it had been asserted in the appeal that the Respondent had annexed a wrong Brochure with the Company Petition to mislead the learned Company Judge and the said Brochure was applicable for Bookings which had been made after 16.09.2006, he does not press the said averment and the Brochure annexed by the Respondent in the Company Petition be taken to be the correct Brochure. 3. On the aforesaid basis, we have heard the learned counsel for the parties. 4. In order to assail the order of the learned Company Judge, only two contentions were raised by the learned counsel for the Appellant being: (i) that the subject matter of the Company Petition was barred by limitation, and (ii) that no interest was payable by the Appellant to the Respondent, much less at the rate of 12% per annum from the date of the receipt of the amount till the date of the deposit of the amount with the Registry of this Court. 5. We do not find any merit in the first contention that the Company Petition is barred by limitation for the reason that it is an admitted fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On casting of 1st Floor Roof Slab - 5%+50% of EDC On casting of 2nd Floor Roof Slab - 5%+50% Of PLC On casting of 3rd Floor Roof Slab - 5% On casting of 4th Floor Roof Slab - 5% On casting of 5th Floor Roof Slab - 5% On casting of 6th Floor Roof Slab - 5% On casting of 7th Floor Roof Slab - 5% On casting of 8th Floor Roof Slab - 5% On casting of 9th Floor Roof Slab - 5% On casting top Floor Roof Slab - 5% On completion of Brick Work in Apptt. - 5% + 50% of PLC On completion of flooring work in Apptt. - 5% + 50% car parking On completion of internal plaster Within Apartment - 5%+50% of EDC At the time of Possession - 5%+Stamp duty + any other charges as applicable." 13. The respondent demanded a sum of Rs. 2,25,000/- (12% of the consideration) by its letter dated 21.12.2006. The said letter further put the petitioner to notice that if the payment as demanded was not made within a period of 30 days, the petitioner would be liable to pay penal interest at the rate of 20% P.A. 14. Admittedly, the respondent received the payment of the booking amount and the first installment (aggregating 20% of the consideration) and thereafter, issued the letter for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) It is further admitted by the learned counsel for the respondent that a flat measuring 1500 sq. ft. was not presently available in the project currently as the towers that have been constructed comprise of flats which measure approximately 1200 sq. ft. each. 16. Considering the above facts, it can hardly be disputed that the respondent has failed to fulfill its obligation and is not in a position to handover the possession of the flat in respect of which the amount of Rs. 3,75,000/- had been accepted. Admittedly, the petitioner was only obliged to pay 20% of the consideration till the commencement of construction as per the construction linked plan. The amount of booking and the first installment was also demanded and accepted by the respondent as being 20% of the consideration (computed for a flat of 1500 Sq. ft. at the rate of Rs. 1250 per Sq ft.) for a flat measuring 1500 sq ft. It is thus, not open for the respondent to contend that it was not obliged to hand over a flat measuring 1500 Sq ft. A allotment letter for such flat was issued to the petitioner on 22.11.2007 and there has been no further communication by the respondent whereby the said allotment has been sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was a divergence of opinion expressed by other High Courts, it was observed as under:- "The creditor need not be forced to initiate separate litigation for recovery of the interest amount and the interest amount can be determined by the Company Judge in the winding up proceedings and on failure of the company to pay that amount the Company can be ordered to be wound up on the ground that it is unable to pay its debts." 9. In the case of Vijay Industries vs. Natl Technologies Limited, (2009) 3 SCC 527, the Supreme Court in a case where there was no agreement between the parties to pay interest after noting that interest was inter alia payable by way of restitution, observed as follows:- "For invoking the relevant provisions i.e. Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956 in relation to winding up of a company on the ground of its inability to pay its debt, what is necessary is that despite service of notice by the creditor, the company which was indebted in a sum exceeding one lakh rupees then due, failed and/or neglected to pay the same within three weeks thereafter or to secure or compound for it to the reasonable satisfaction of the creditor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot be relegated to the remedy of a civil suit qua interest to which he is entitled by way of restitution. We may notice that Justice Y.K. Sabharwal speaking for this Court in Devendra Kumar Jain v. Polar Forgings & Tools Ltd. 49 (1993) DLT 552 had also opined that where the liability to pay the principle amount is not disputed, the creditor need not be forced to initiate separate litigation for recovery of interest amount and the interest amount can be determined by the Company Judge in the winding up proceedings and on the failure of the Company to pay that amount, the Company can be ordered to be wound up on the ground that it is unable to pay its debts. To the same effect is the judgment of Division Bench of Punjab & Haryana High Court in Unisystems P. Ltd. v. Stepan Chemical Ltd. MANU/PH/0244/1985................................." 11. The judgment relied upon by the counsel for the Appellant in the case of V.K. Jain v. Richa Laboratories (P.) Ltd., (1993) 50 DLT 378 is distinguishable on facts in that the Petitioner in the said case had preferred both a suit and a winding up petition and claimed to be entitled to charge interest at the rate of 18% per annum. In these cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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