Jk Synthetics Ltd. vs Ansal Housing & Construction Ltd.
2002 Latest Caselaw 338 Del

ORDER

Mukul Mudgal, J.

1. This winding up petition under Section 433(e) of the Companies Act (hereinafter referred to as the Act) has been filed against the respondent company. The petitioner had booked 4 flats in a proposed group housing scheme by the respondent company on 18.8.89, The petitioner continued to make payments for the said four flats as per the demands by the respondent and was issued four allotment letters for flats No. G-302, H-302, H-401 and H-301. By August, 1996 the petitioner had made a payment of Rs. 20,69,350/- for the said flats and acknowledged by receipts of the respondent. The respondent claimed an enhanced amount of Rs. 7,16,384/- from the petitioner for the said four fiats in December, 1996 by 17th July, 1997 failing which the booking was to stand cancelled. The said enhancement not having been found acceptable by the petitioner the petitioner sought refund of Rs. 15,56,168/- i.e. the amount deposited minus 20% as per Clause 4(a) which reads as under:

"4(a) Installments due towards payment of the flat will be paid at intervals as laid down by the builder. If payment is not received within stipulated period given in the Installment call notice, or in the event of breach of any of the terms and conditions of this allotment by the flat buyer, the allotment will be cancelled and 20% of the price of the flat will be forfeited and the balance amount will be refunded without any interest."

2. The non-compliance of the request for refund of 80% of the amount demanded led to the present winding up petition.

3. As per the order dated 9th November, 2000, the sum of Rs. 15,56,168/- was refunded to the petitioner by the respondent on 14th December, 2000 towards the principal amount due as per Clause 4(a). The question of payment of interest was left upon and is being considered today. The learned Counsel for the petitioner says that he has claimed interest (c) Rs 24% in the winding up petition for the period starring from 17th July, 1997 when the amount became due as per cancellation of contract between the parties of 4th December, 2000 when Rs. 15,56,168/- was paid. The petitioner's Counsel has placed emphasis on the notice of the respondent seeking interest from the petitioner (c) 24% p.a. as per letter dated 5th July, 1997 (Annexure P4), filed by the petitioner with the petition. The said relevant portion of the respondent's letter dated 5th July, 1997 to the petitioner reads as followed ;

"Sir/Madam,

Inspite of our call notices and reminders, you have failed to clear the due outstanding of Rs. 2,82,489 A,

You are finally requested to remit the due outstanding by latest 17.7.97 (interest on delayed payment would be calculated separately @ 24% per annum) failing which your unit would stands cancelled, and you will have no further lien on the same."

4. There is no appearance for the respondent. The fact that the respondent themselves sought 24% p.a. from the petitioner clearly disentitled the respondent to plead for a lower rate of interest which should be paid to the petitioner. This also demonstrated that even the respondent treated this as a commercial transaction and demanded 24% interest from the petitioner for delayed payment. Having themselves demanded 24% interest on delayed payment, and having delayed payment due as per Clause 4(a) for no justifiable reason the respondent are bound to pay interest @ 24% p.a. Accordingly as far as the question of interest is concerned, it is ordered that the petitioner be paid interest @ 24% p.a. on a sum of Rs. 15,56,168 /- from 17th July, 1997 till the date of payment. The petitioner will also be entitled to costs quantified at Rs. 10,000/- which is payable within four weeks.

List on 27th May, 2002.