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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 ..... flat. In such circumstances, we do not see as to how the present petition is barred by limitation. On the aspect of interest also, we do not find any merit in the contention of the Appellant that the Respondent is not entitled to interest on the sums paid by the Respondent which have been utilized by the Appellant ever since the year 2007. As noted by the learned Company Judge, the Respondent had itself demanded interest at the rate of 20% in the event the first installment of ₹ 2,25,000/- was not paid within a period of 30 days from the date of the demand.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 the question of interest should be left to be determined by a Civil Court. Amount of interest awarded by the learned Company Judge at the rate of 12% per annum also appears to us to be reasonable and proper - CO.APP. 22/2014 - - - Dated:- 21-4-2014 - Reva Khetrapal And Pratibha Rani JJ. For the Appellant : Mr. Raman Duggal, Advocate. For the Respondent : Dr. B.K. Dash and Mr. Pawan Kumar, Advocates. ORDER (ORAL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the allegation of the Respondent that the Appellant company in the said letter has attempted to show the pictures of the various flats and buildings, so as to create an impression as if the flats had been constructed and the project completed, which was contrary to the fact situation. The money taken by the Appellant company from the Respondent as well as from other investors had in fact been siphoned and diverted by the Directors and other persons responsible, for the day-to-day management of the Appellant company. The Respondent in the aforesaid circumstances was constrained to issue a legal notice dated 01.10.2012 under Sections 433 and 434 of the Companies Act, 1956. The Appellant company having failed and neglected to pay the amount due and not having responded to the said notice, the Respondent instituted the petition for winding up of the Appellant company. 6. Suffice it to note that in the reply filed by the Appellant company to the petition, the Appellant company has categorically admitted that the letter dated 09.01.2012 was sent to the Respondent informing her to make balance payment and take possession of the flat. In such circumstances, we do not see as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 1500 Sq. Ft. in Tower Beeta 6 at Camelia Garden, Bhiwadi . The respondent was obliged to carry out the construction and demand further payments according to the schedule as agreed. However, admittedly, the respondent did not carry out any construction in respect of Tower Beeta-6 and no further demands were made on the petitioner till 09.01.2012 The respondent invited the petitioner to make the balance payment immediately by its letter dated 09.01.2012. It is apparent that the said demand was completely unjustified as the respondent had not even commenced construction of Tower Beeta-6. The respondent had also not issued any other communication with regard to altering the previous provisional allotment. In the circumstances, the contention that cause of action arose in 2007 and is barred by limitation is wholly erroneous. The petitioner has made the claim for refund of the amount paid as it was, subsequently, discovered that the respondent has not commenced the construction as represented. The petitioner could only make a claim as a reasonable period for construction had elapsed. The demand for the balance consideration in January 2012 and the discovery that the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otment has been sought to be altered in any manner. On the contrary, respondent called upon the petitioner to pay the balance sum due immediately, by its letter dated 09.01.2012. 17. In the given circumstances, the defence raised by the respondent that he is not liable to repay the amount of Rs. 3,75,000/- to the petitioner is not credible. In my view, there is no justifiable reason or ground on which the respondent can resist the claim of the petitioner and withhold the payment of Rs. 3,75,000/-. The said amount had been paid by the petitioner for purchase of the flat, which the respondent is, admittedly, not in a position to deliver and consequently cannot withhold the amount paid by the petitioner. The contention that the allotment was only a provisional one and the respondent could amend the same also cannot be accepted as, admittedly, there is no flat measuring 1500 Sq. ft. that has been built and is available with the respondent in the residential development - Camelia Garden . The respondent cannot now compel the petitioner to accept a residential flat measuring 1200 Sq. ft. in another Tower. The contention canvassed on behalf of the respondent is clearly wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeks thereafter or to secure or compound for it to the reasonable satisfaction of the creditor. Failure of the company to pay the agreed interest or the statutory interest would come within the purview of the word debt . Further, Section 433(e) of the Companies Act does not state that the debt must be precisely a definite sum. It is not a requirement of the law that the entire debt must be definite and certain. The Division Bench dismissed the company petition proceeding on the basis that the entire sum covering both the principal and the interest must be undisputed. It is one thing to say that the amount of debt is not definite or ascertainable because of the bona fide dispute raised 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, the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 circumstances, it was held that in case the principal amount due is paid within two months from the date of the said judgment, the winding up petition would stand dismissed with liberty to the Petitioner to pursue his remedy with regard to interest in the suit instituted by him. In the present case, undisputedly no suit is pending between the parties with regard to the amount in question. 12. The reliance placed by the counsel for the Appellant on the judgment of the Karnataka High Court in Jyothi Limited v. Boving Fouress Limited, 2001 (106) Comp. Cas. 380 (Kar) is also misplaced. In the said case, the Respondent company had paid the entire principal amount during the pendency of the winding up petition and thereby established its financial and commercial solvency and in view of bonafide dispute regarding interest the Court held that there was no inability to pay any debt and the petition was liable to be dismissed. In any event, the said judgment rendered by the Karnataka High Court must be held to be impliedly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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