S.J.Sd.Chhatwal vs Pushpa Builders Ltd.
1998 Latest Caselaw 785 Del

ORDER

Usha Mehra, J.

1. This is an application by the respondent M/s Pushpa Builders Limited seeking order of this Court to transfer the amount deposited by the respondent company to the National Consumer Dispute Redressal Commission (in short the National Commission) and to dismiss the company petition because of the pendency of a petition before the National Commission. The respondent has also raised the objection to the jurisdiction of this Court, because according to it, the pendency of a petition before the National Commission this Court looses its jurisdiction. That amount deposited be not disbursed to the petitioners.

2. In order to appreciate the point raised in this application, it must be stated at the outset that there is a chequered history of litigation and round of applications filed by the respondent. This is not the first application of its kind. Number of applications had earlier been filed by the respondent before various Forums seeking modifications of their orders which I would like to pen down here, before I deal with this application on merits.

3. Petitioners herein filed petition before the National Commission. The National Commission vide its order dated 21st June,1996 directed the respondent herein to refund the amounts paid by the ten flat buyers alongwith interest at the rate of 18% per annum on that amount from the respective dates of deposit till repayment is made. Three months time was granted to the respondent company to make the payment to each of the said ten flat buyers. Respondent herein filed an appeal against the said order to the Supreme Court which was listed as Civil Appeal No.13172/96. The same was dismissed on 13th January,1997. Thereafter respondent filed review application before the National Commission. Same was dismissed by the National Commission vide its order dated 3rd February,1997 observing that the prayer contained in that application virtually amounted to a request to modify the final order that had been passed by the Commission in the original petition and which could not be done. Accordingly dismissed the application. However, as regards the execution of the order passed, the National Commission granted three months time to arrange funds and pay to the ten flat buyers. Shri S.J.S.Chhatwal filed a company petition which was listed as CP.No.120/94. The said petition stood admitted vide order dated 16th August,1995. Directions in this petition were to publish the citation in the newspapers and Delhi Gazette. On appeal having been filed by the present respondent against the issuing of citation, stay was granted by the Appellate Authority. But the said appeal was subsequently dismissed. Pursuance to the order of the National Commission respondent deposited a sum of Rs.37/- lakhs. This Court vide order dated 16th January,1998 observed that since substantial sum of money was yet to be paid by the respondent to the flat buyers, therefore, citation should be taken out as per the order dated 16th August,1995. It was also observed that in case respondent deposit the balance amount within two months for being disbursed to the flat buyers, citation will not be issued. Order of 16th January,1998 was not complied by the respondent, therefore, this Court vide order dated 19th March,1998 directed the citation to be taken out and appointed the Official Liquidator as the Provisional Liquidator of the company. Matter was thereafter taken up on 26th March,1998 when Mr.Harish Uppal appearing for the respondent company filed application for review of the order passed by this Court directing issuing of the citation and appointment of Provisional Liquidator. Perusal of order dated 26th March, 1998 shows that counsel for the respondent/applicant stated that he had paid to the ten flat buyers a sum of Rs.39,50,000/- which according to him was more than 53% of the total amount due from the respondent. This position was disputed by counsel for the petitioners who also pointed out that beside ten flat buyers there were 15 other flat buyers to whom payments were due from the respondent. This Court directed the respondent to pay the balance amount to the flat buyers and gave direction to the Registry to work out the amount due to each of the ten flat buyers in accordance with the order of the National Commission. Registry was also directed to work out the amount due calculating interest at the rate of 18% per annum. In the meantime, Provisional Liquidator was asked not to take over the assets of the Company. The case was, thereafter, adjourned to 2nd April,1998 on which date Mr.Harish Uppal, Advocate appearing for the respondent stated that his client was willing to make further payment due to the ten flat buyers. He also stated that the payment would be made on or before 3rd August,1998. Mr.Harish Uppal also stated that in case the payments were not made within the time granted by the Court, respondent would not oppose the application of the petitioners for winding up of the Company. This statement Mr.Harish Uppal had made on instructions of Mr.H.L.Soin, Director of the respondent company. The flat owners/petitioners agreed for the extension of time for payment of balance amount because their amounts were due since the year 1989. Keeping in view the statement of counsel for the respondent Mr.Harish Uppal, this Court directed the respondent company to make payment of the remaining amount to the ten flat buyers on or before 3rd August,1998. With regard to the other 15 flat buyers directions were given to pay the entire amount after deduction of 20% of the principle amount deposited by them by or before 7th December,1998. It was also observed that in case payments were not made within the time granted to the respondent, it would not be open to the respondent to oppose the winding up of the company. Directions were also given to the petitioners to deposit the documents pertaining to the flats in this Court after the receipt of payment from the respondent in accordance with the directions given by this Court. Registry was directed to calculate the interest which the respondent was liable to pay to the ten flat buyers.

4. Rate of interest at the rate of 18% per annum was challenged by the respondent by way of appeal which was listed as LPA.No. 324/98. Vide order dated 7th August,1998, Division Bench of this Court dismissed the appeal. Writ petition filed by the respondent company challenging the rate of interest has also been dismissed. The Registry pursuance to the order passed by this Court calculated the amounts due and payable by the respondent to the ten flat buyers. It is in this background that we have to see what has been now urged by the respondent.

5. So far as the question of jurisdiction is concerned, it must be stated that this Court on a petition of winding is competent to pass the necessary orders and can also give direction to the respondent to deposit the amount due. However, keeping in view that the National Commission had passed certain orders regarding payment, this Court deemed it fit to direct the respondent to deposit that amount beside the balance amount due from the respondent company to the ten flat buyers. This order was within the competence of this Court. Moreover, pendency of proceeding before National Commission is no bar to this Court passing orders nor directing the respondent to deposit the amount as directed by the said Commission would mean that the company Court has no jurisdiction. Hence I find no merits in this objection.

6. So far as four petitioners are concerned against whom respondent company raised certain objections, namely, Mr.Jalaj Sharma, Mr.C.L.Joshi, Mr.R.P.Paliwal and Mr.Sharad Paliwal, their entitlement of the amounts claimed by them has already been considered and accepted by the National Commission. National Commission rejected the review application filed by the respondent directing that the amount as ordered should be paid to the petitioners. Therefore, respondent being liable and having not discharged its debt, this Court was competent to issue directions to the respondent which are legal and in accordance with law. On this account also, I find no merits in this application. In fact the respondent on one pretext or the other is trying to delay the implementation of the order of this Court.

7. So far as the question of interest at the rate of 18% per annum is concerned, that contention of the respondent has already been rejected by various courts. Therefore, this ground is not open for review.

8. So far as the objection that the amount deposited by the respondent should not be disbursed, I find no merits in the same. This Court vide order dated 16th January,1998 made it clear that in case respondent deposit balance amount within two months for being disbursed to the flat buyers, citation will not be published. So the order of disbursement has already been passed way back on 16th January,1998. Hence, no review on this count is permissible. Not only that, counsel for the respondent Mr.Harish Uppal on 2nd April,1998 made a statement at the bar that in case the balance amount was not paid within the time granted by this Court respondent would not oppose the application of the petitioner for winding up of the company. This statement was made by counsel for the respondent at the instructions of Mr. H.L.Soin, Director of the respondent company. It was pursuance to the statement of the counsel at the Bar that directions were given to the respondent company to make payment of the remaining amount to ten flat buyers. Registry was also directed to calculate the amounts to which each of the petitioner was entitled. Registry has now calculated the amount which the respondent company is liable to pay to the ten flat buyers. Ratio as to how this has to be disbursed has also been calculated by the Registry. As per that calculation worked out by the Registry, the respondent is liable to pay a sum of Rs.56,89,527.96 paise whereas the respondent deposited only a sum of Rs.37,12,706.74 paise. Thus respondent is liable to pay balance amount of Rs.19,76,821.22 paise.

9. For the reasons stated above, I find no merits in the application. The same is accordingly dismissed with costs of Rs.5,000/-.

CA.No.1355/98

10. Mr.Arun Khosla, counsel for the ten flat buyers states that the ten flat buyers are aged persons. Their amounts have been due since 1989. They have been litigating for their rightful due for the last so many years. The respondent on one pretext or the other has been delaying the payment. Now since part payment has been deposited by the respondent and the Registry has calculated the amounts payable to each of the ten flat buyers, there is no impediment for this Court to order for disbursement of the same to these ten flat buyers. Directions are accordingly given to the Registry to disburse the amount deposited by the respondent company proportionate to the amount due to each of the flat buyers as worked out by the Registry. Directions are given to the Registry to issue cheques in the name of each of the ten flat buyers forthwith. Directions are also given to the respondent to deposit the balance amount of Rs.19,76,821.22 paise within a period of two months.

Matter be now listed on 8th December, 1998.