Vibhu Bakhru, J.@mdashThe present petition has been filed by the petitioner under Sections 433(e) and 434 of the Companies Act, 1956, inter alia, praying for winding up of the respondent company on the ground that the respondent company has failed and neglected to pay a sum of Rs. 1,72,000/- alongwith interest. Briefly stated, the facts are as under:-
1.1. The respondent company is engaged in business of the real estate development. The petitioner had applied to the respondent company on 15.02.2007 for booking of a residential unit in its project "Eastern Homes" proposed to be developed by the respondent at Dasna, Ghaziabad (U.P.) on National Highway-24. The petitioner had also paid a sum of Rs. 1,48,500/- along with the printed application form and the same was duly accepted by the respondent company. The application form also contained the terms and conditions on which the bookings were accepted by the respondent. Clause "(b)" of the terms and conditions provided that in the event the developer was not in a position to offer the allotment of the unit within a period of 12 months, the Developer would refund the advance along with simple interest at the rate of 9% per annum. The said clause (b) is relevant and is quoted below:-
In case the Developer is not in a position to make offer of allotment for the Flats/Shops/Plots/Independent Floor/Villas/Mall Stores within a period of 12 months from the date of my/our application for any reason whatsoever, we shall only be entitled to refund of the Advance for Provisional Registration paid by us along with simple interest @ 9% p.a. from the date of payment of such advance, subject to my/our giving you a 30 days notice of the same.
1.2. The petitioner states that subsequent to the registration, the petitioner had also made a payment of further sum of Rs. 1,48,500/-. Thus, in aggregate the petitioner had paid a sum of Rs. 2,97,000/- to the respondent company. The aforementioned project could not take off and consequently the petitioner sought refund of the amount paid to the respondent. Pursuant to the request made by the petitioner, the respondent sent a letter dated 22.10.2008 forwarding an Application Form for Refund to the petitioner. The respondent called upon the petitioner to sign the said application form in order that the refund could be processed. The petitioner signed the said application form as required by the respondent and forwarded the same to the respondent. In spite of receiving the request for refund in the form as specified by the respondent, the respondent failed and neglected to make the payment.
1.3. Thereafter, the petitioner sent several reminders to the respondent, however, most of them were not replied to. Finally, the petitioner was constrained to cause a legal notice to be issued to the respondent on 04.06.2009 calling upon the respondent to pay a sum of Rs. 2,97,000/- along with interest. The petitioner further cautioned that in case of failure to pay the aforesaid amount, the petitioner would be constrained to initiate legal proceedings. Subsequent to the said legal notice, the respondent forwarded a cheque for a sum of Rs. 50,000/- under the cover of its letter dated 04.08.2009. The letter further stated that the cash flows of the respondent companies were severally affected, however, the respondent had no intention not to make the payment due to the petitioner. The respondent further assured that the balance amount would also be released as early as possible.
1.4. Despite the assurance held out by the respondent, further payments were not forthcoming and the petitioner continued to pursue with the respondent for release of the balance payment. Thereafter, the petitioner caused another notice dated 01.12.2009 to be served on the respondent calling upon the respondent to pay the balance sum of Rs. 2,47,000/-. In response to this notice, the respondent caused a letter dated 12.12.2009 to be sent through its advocate, whereby the respondent contended that there was a mutual settlement under which the petitioner had agreed to accept the sum of Rs. 50,000/-. It was asserted that with the said amount being paid by the respondent, the respondent had duly performed its obligations. This notice was immediately replied to by the petitioner, by a letter dated 18.12.2009, and the statement of the respondent that there had been mutual settlement was emphatically refuted. The petitioner once again called upon the respondent to pay the entire sum along with interest at the rate of 9% per annum.
1.5. The respondent, thereafter, under the cover of its letter dated 30.01.2010 sent another cheque for a sum of Rs. 50,000/-. This letter also assured the petitioner that the balance amount would be paid as early as possible.
1.6. Thereafter, the petitioner once again called upon the respondent to pay the balance amount and subsequent thereto, the respondent company sent another cheque for a sum of Rs. 25,000/- under the cover of its letter dated 19.03.2010.
1.7. The petitioner thereafter sent several reminders to the respondent for payment of the balance amount, however, the respondent neither refunded the balance amount nor responded the said letters. Finally, the petitioner caused a notice dated 27.10.2012, u/s 434(1)(a) of the Companies Act, 1956, to be served upon respondent company, calling upon the respondent company to refund the balance sum of Rs. 1,72,000/- along with interest, in terms of the agreement, failing which the petitioner would be constrained to initiate proceedings for winding up of the respondent company. The said statutory notice dated 27.10.2012 was also not responded to by the respondent company.
2. The learned counsel for the petitioner has contended that the facts demonstrate that the respondent had failed and neglected to pay the admitted amounts due and payable by the respondent company to the petitioner. It was contended that in the given circumstances, the present petition was liable to be admitted.
3. First of all, the learned counsel for the respondent submitted that the present petition was not maintainable as the same was contended to be barred by limitation. The respondent submitted that the booking of the residential unit was made by the petitioner in 2007 and thereafter, there had been no acknowledgment of debt by the respondent company. It was submitted by the learned counsel for the respondent that the letter dated 30.01.2010 could not be considered as an acknowledgement of debt since the specific amount payable to the petitioner has not been acknowledged therein. Therefore, in view of the above, it was argued that present petition was barred by limitation by virtue of the Limitation Act, 1963.
4. Secondly, it was contended by the respondent that there was no liability to pay the amount as claimed by the petitioner. The learned counsel for the respondent referred to the terms and conditions of registration of booking and contended that the obligation to refund the amount with interest at the rate of 9% per annum was only limited to the provisional amount and not the subsequent amounts that were paid by the petitioner. It was submitted that once the booking was confirmed, the said clause (b) would not be applicable. It was further submitted that the petitioner had failed and neglected to pay the balance amount as was required to be paid to the respondent under the payment plan and, therefore, the booking of the residential unit in favour of petitioner was cancelled. It was contended that in the given circumstances, the respondent had no obligation to pay any amount to the petitioner.
5. It is lastly contended by the learned counsel for the respondent that there was a mutual agreement between the parties in terms of which Rs. 1,25,000/- was to be paid to the petitioner in full and final settlement of its dues. The said sum had been paid to the petitioner and therefore no further amount was payable to the petitioner.
6. The learned counsel for the petitioner has strongly refuted the contention that there had been any mutual settlement between the parties. It was submitted by the learned counsel for the petitioner that there was no document on record which would reflect that there was any settlement between the parties as contended. And this defence raised by the respondent was patently a sham defence. The learned counsel for the petitioner submitted that the said defence had also been taken by the respondent in response to the notice dated 01.12.2009 whereby the respondent had concocted the story that there had been a mutual agreement by virtue of which the petitioner had agreed to accept the sum of Rs. 50,000/-. However, the respondent had, admittedly, made payments to the petitioner thereafter. The learned counsel also pointed out that the respondent had also assured the petitioner that the balance payment as demanded by the petitioner would be paid as early as possible. The counsel for the petitioner has relied on the letters dated 12.12.2009 and dated 30.01.2010 sent by the respondent company.
7. I have heard the learned counsel for the parties.
8. The facts of this case clearly indicate that there is no dispute that the petitioner had paid a sum of Rs. 2,97,000/- to the respondent. There is also no dispute that the project "Eastern Home" in respect of which the said sum had been accepted by the respondent, had not progressed as scheduled. Even according to the respondent, the said project had not taken off. This is clearly indicated in the letter dated 04.08.2009 sent by the respondent, which states that the project could not take off because of Government policy.
9. These facts alone are sufficient to indicate that the respondent owed an obligation to refund the amount to the petitioner.
10. It is also not disputed that the petitioner had sought a refund, of the amounts paid by him, from the respondent. The respondent had clearly accepted its liability to refund the amount and had also forwarded an application form, which the respondent required the petitioner to sign for processing the refund. Letters sent by the respondent, subsequently, also unequivocally indicate that the respondent had admitted its liability to pay the amount as claimed by the petitioner. In the given facts, it is indisputable that the amount demanded by the petitioner was due and payable by the respondent to the petitioner.
11. I am unable to accept the contention of the respondent that the petitioner''s claim was barred by the limitation at the material time when the present petition was filed. The documents on record indicate that the petitioner was pursuing the respondent for making payments of the sums which were due and payable by the respondent. The respondent had all along admitted its liability. However, by a letter dated 12.12.2009, the respondent had attempted to resile from its obligations and had claimed that only ''50,000/- was due and payable to the petitioner. By a letter dated 18.12.2009 sent in response to the letter dated 12.12.2009, the petitioner had strongly refuted that there had been any settlement and had once again called upon the respondent to make the payment for a sum of ''2,47,000/- being the principal amount that was due and payable at the material time. The response of the respondent, thereafter, is important. The respondent not only made a further payment of Rs. 50,000/- under the cover of its letter dated 30.01.2010 but also assured the petitioner that the balance amount would be paid. This, in my view, is a clear acknowledgement of the liability by the respondent. The contention of the respondent that the said acknowledgment does not specifically mention the amount payable, and therefore, the said letter could not be considered as an acknowledgement of debt, also cannot be accepted. Indisputably, the payment of Rs. 50,000/- made by the respondent under the cover of its letter dated 30.01.2010 is in response to the demand made by the petitioner by its letter dated 18.12.2009. The amount demanded by the petitioner by its letter dated 18.12.2009 was an ascertained sum and the letter dated 30.01.2010 has to be read in conjunction with the letter dated 18.12.2009. In this view the amount acknowledged by the letter dated 30.01.2010 is an ascertained sum.
12. It is also settled law that even though the exact nature or the specific character of the said liability may not be indicated in words in the statement, the same would amount to an acknowledgement. In the case of
14. According to Section 18 of the Limitation Act, an acknowledgement of liability made in writing in respect of any right claimed by the opposite party and signed by the party against whom such right is claimed made before the expiration of the prescribed period for a suit in respect of such right has the effect of commencing a fresh period of limitation from the date on which the acknowledgement was so signed. It is well settled that to amount to an acknowledgement of liability within the meaning of Section 18 of the Limitation Act, it need not be accompanied by a promise to pay either expressly or even by implication.
15. The statement providing foundation for a plea of acknowledgement must relate to a present subsisting liability, though the exact nature or the specific character of the said liability may not be indicated in words. The words used in the acknowledgement must indicate the existence of jural relationship between the parties such as that of debtor and creditor. The intention to attempt such jural relationship must be apparent. However, such intention can be inferred by implication from the nature of the admission and need not be expressed in words. A clear statement containing acknowledgement of liability can imply the intention to admit jural relationship of debtor and creditor...
(emphasis supplied)
13. In view of the foregoing the contention of the respondent that the present petition is time barred and letter dated 30.01.2010 does not amount to an acknowledgment is not acceptable.
14. The second contention raised by the respondent that it has no liability to pay the amount, is patently dishonest. The project for which the money had been collected from the petitioner had, admittedly, not taken off. And, the agreement between the parties had unequivocally provided that the amounts collected would be refunded with interest @ 9% per annum, in such eventuality. In the given circumstances, the contention that the terms and conditions as agreed were limited to only provisional booking cannot be accepted. It is difficult to appreciate the contention that even though the respondent had received funds on account of a contract which it did not perform, yet it could retain the same.
15. The contention of the respondent that the petitioner had failed to make balance payments and the same had resulted in cancellation of booking is also a patently dishonest plea. The record clearly indicates that it was an admitted position that the project had not taken off. Thus, the question of the petitioner making further payments did not arise.
16. The third contention that there was a mutual agreement by virtue of which the respondent was only obliged to pay a sum of Rs. 1,25,000/- is also clearly a sham defence. There is no document on record that indicates that such an agreement had taken place between the parties. It is also relevant to note that by a letter dated 12.12.2009, the respondent had attempted to suggest that the settlement between the parties was limited to the respondent repaying only Rs. 50,000/-. This had been refuted by the petitioner in no uncertain terms by its letter dated 18.12.2009 and the petitioner had called upon the respondent to pay the balance sum of Rs. 2,47,000/-. It is only, thereafter, that the respondent had made further payments. It is apparent from the above that this was not the first time that the respondent had attempted to raise such a false plea. The defence that there was a mutual settlement under which the respondent had to pay only a sum of Rs. 1,25,000/- is not borne out by the records or supported by any credible evidence. It is clear that that this defense is a concocted defense with no element of truth in it.
17. In view of the forgoing, it is apparent that the respondent is unable to pay its admitted debt. The petition is accordingly admitted. The petitioner is directed to publish the advertisement of this petition in "The Statesman" (English) and "Jansatta" (Hindi) for a hearing to be held on 29.05.2014. The Citations be also published in the "Delhi Gazette".
18. The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company. The Directors of the respondent company are directed to file the Statement of Affairs within a period of 21 days from today. The Managing Director shall also file an affidavit indicating the current addresses of all the offices of the respondent, the addresses of all its Directors, as well as the details of all bank accounts of the respondent company.
19. The respondent is restrained from selling, transferring or in any manner alienating any of its assets. The respondent is also restrained from operating its bank accounts except with the consent of the Official Liquidator.
20. The Official Liquidator shall file a report at least two weeks before the next date of hearing.
21. CA No. 199 of 2013 is allowed subject to all just exceptions. Accordingly, CA Nos. 198 and 199 of 2013 stand disposed of. List on 29.05.2014.
