Reva Khetrapal, J. (Oral)

CM No.6670/2014

Exemption granted subject to all just exceptions.

Application stands disposed of.

CO.APP. 22/2014 and CM No.6669/2014 (stay)

1. This appeal is directed against the order dated 22.01.2014 passed by the learned Company Judge in Company Petition No.54/2013 whereby the learned Company Judge directed the Registry of this Court to release the amount of Rs. 3,75,000/- deposited by the Appellant herein along with interest accrued, to the Respondent. In addition, the Appellant was directed to pay simple interest at the rate of 12% per annum from the date of the receipt of the amount till the date of deposit. The Appellant was further directed to pay the interest within a period of four weeks from the date of the passing of the impugned order, failing which the winding up petition would 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 that the Appellant company itself issued a letter dated 09.01.2012 demanding the balance payment from the Respondent. In the said letter, the Appellant company stated that the Respondent can take possession of the flat and get their title deeds registered very soon. It is 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 how the present petition is barred by limitation. We, therefore, affirm the findings of the learned Company Judge on the aspect of limitation. The said findings are, for the facility of reference, reproduced hereunder:-

“12. At the outset, the contention that the claim of the petitioner, which is subject matter of the present petition, is barred by limitation is erroneous and is liable to be rejected. Admittedly, the respondent had received the sum of Rs. 3,75,000/- towards booking of a residential flat. The said payment was made

Click Here to Read the rest of this document