April 4, 2015
Companies Petition No: 148 of 2014 Case Decided On: 13-01-2015 Brief Facts: The Petition was filed by the SHAHIREAL TECH PVT LTD (herein after referred as Petitioner) seeking winding up of the CELEBRATION CITY PROJECTS PVT LTD (herein after referred as Respondent) for the alleged failure to pay the sum Rs. 17,26,41,591/- The contention of the Petitioner was that the respondent under the agreement was responsible for finding the tenants and for renting out the space allocated to the Petitioner. The collaboration Agreement stipulated that the Respondent has represented that the space had already been committed by renowned companies as lessees as mentioned in the annexure annexed to the agreement and the respondent obliged to pay to the Petitioner shall be deemed to be Liquidated sum. In return, the Respondent filed a short reply taking only a preliminary objection that since the petition has been filed on account of alleged recovery of liquidated damages, such a petition is not maintainable till such time the damages were adjudicated finally by a court of law. The Court decided that Petition held to be maintainable. Reason: Since the preliminary objection was raised that the petition was not maintainable, the arguments were heard only on the preliminary objection. Respondent has relied on the decision of the Division Bench of this Court titled Tower Vision India Pvt Ltd v. Procall Private Limited 2014 to contend that where the claim is for damages even though liquidated, no winding up petition would lie as there is no debt and the issue of damages is yet to be determined by the court. Insight on Case: In the present case, the contention of the Petitioner is that the Petitioner had invested a substantial amount of money in the project and the Respondent had undertaken to complete the project by a particular date. Thereafter, the Respondent itself was responsible for renting out the portion falling to the share of the Petitioner at a minimum rental. As per the Petitioner, the Petitioner had invested in the project with a guarantee from the Respondent that the Petitioner would be assured a specified return on the investment. Since the Petitioner was only to contribute a particular sum of money, the obligation on the Petitioner was duly fulfilled when the Petitioner had contributed the amounts agreed to contribute. The agreement between the parties also stipulated the minimum amount at which the premises would be rented out by the Respondent. The agreement further stipulated that in case the Respondent was not able to rent of the premises and the specified rate the Respondent would pay to the Petitioner the said rate of rent. As noticed hereinbefore, The Respondent has filed a short reply and chosen not to reply to the contentions on merits on its own volition and without seeking leave and liberty of the court. The Respondent has done so at its own risk. Decision: In the interest of justice, subject to payment of costs of Rs. 10,000/- the Respondent is granted three weeks time to file a para wise reply to the petition.