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TMI Blog2016 (10) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by Mr. Khandeparkar that the agreement is presently not available and in any case not registered. The agreement for sale is not relied upon in the petition which would normally have been the case. However, the fact remains that the cheques have been issued there is no explanation forthcoming from the respondent company as to why these cheques have been issued. The controversy relating to the agreement for sale is something that can gone into in appropriate proceedings. The cancellation agreement on the basis of which the petitioner has proceeded is dated 2nd April, 2014. The first of the cheque issued pursuance to the agreement is also dated 2nd April, 2014 - However, the petitioner waited for over almost 6 months to deposit the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f an agreement dated 2nd April, 2014 entered into between the company and the petitioner whereunder the respondent company agreed to pay to the petitioner a sum of ₹ 18 crores towards surrender of rights to purchase two flats being flat nos.21NE and 22SW in a building to be constructed by the respondent. The agreement proceeds on the basis that on 12 th May, 2011 the respondent company agreed to sell these two flats to the petitioner. However, due to various reasons the construction had not progressed. As a result, the parties have decided to cancel the agreement and the petitioner agreed to surrender its right to claim these two flats and in consideration thereof the respondent agreed to pay a sum of ₹ 18 crores. This is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on presentation. Vide letter dated 4th December, 2014 the petitioner recorded an assurance of the respondent company that their dues would be paid and that remaining two cheques may not be presented on he due date. Accordingly the third and fourth cheques were not deposited relying upon this respondent's assurances. 3. Mr. Khandeparkar relied upon the repeated reminders contained in the letters dated 4th December, 2014, 31st January, 2015, 13 th April, 2015 and 9th May, 2015 calling upon the respondents to pay over the amounts of the dishonoured cheques and or issue fresh cheque in lieu thereof. However, there was no reply to these letters, as a result the petitioner issued a statutory notice dated 13th June, 2015. 4. Admittedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r payable on account of consideration to be paid to the petitioner. He submitted that no consideration had flown from the petitioner to the respondent in the first place under the purported agreement for sale. He submitted that these agreements for sale do not exist. 5. In paragraph 6(d) Mr. Bookwala relies upon the averment that the petitioner admits that there was litigation in respect of the sanctioned plan of the building wherein the flats were to be housed and that the respondent had represented that the litigation was minor in nature and would be concluded in a few months. He also relies upon the averment in paragraph 7 to the effect that the petitioner entered into an agreement for sale relying upon these representations. Mr. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion or its contents nor it disputed the fact that the cheques were issued. As the records stands there is no response either any of the letters relied upon by the petitioners. There is no reply to the statutory notice and that is why the presumption that the respondent company is unable to pay debts as and when they arise in the usual course of business. 8. Having considered the contents of the petition, correspondence and the submissions made by the learned counsel, I am of the view that as far as the agreement is concerned, the fact that the option under clause (6) was exercised or at least is deemed to have been exercised is evident from the correspondence which demands payment of monies. In the circumstances, it is not open for the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the second cheque was deposited in bank and why the same was not honoured. Exhibit H to the petition is a copy of the dishonour memo received by the petitioner from their bank along with the copy of the cheque dated 15th June, 2014 . This cheque is for a sum of ₹ 5.90 crores. The reason for dishonour is that the payment of the cheque was stopped by the drawer. This cheque was presented on 14th May, 2014 well within its validity and it seems to be dishonoured on or about 20th August, 2014 . Indeed there is no reply to the statutory notice or to this petition. The amount of ₹ 5.90 crores at least appears to be due and in the light of the above facts the respondent must be put to terms. In the circumstances, I pass the following o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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