Court rejects limitation defense, finds petition maintainable, holds respondent liable.

The court rejected the respondent's limitation defense, finding the petition maintainable. It held the respondent liable to pay the claimed amount, emphasizing the refund agreement terms. Dismissing the alleged mutual settlement, the court admitted the petition for winding up the respondent, appointing the Official Liquidator as Provisional Liquidator. The respondent was restrained from asset dealings without consent, with the case scheduled for further hearing.

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Issues Involved:
1. Maintainability of the petition due to limitation.
2. Liability of the respondent to pay the claimed amount.
3. Alleged mutual settlement between the parties.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition Due to Limitation:

The respondent argued that the petition was barred by limitation, asserting that the booking was made in 2007 and no subsequent acknowledgment of debt was made by the respondent. They contended that the letter dated 30.01.2010 could not be considered an acknowledgment of debt as it did not specify the amount payable. However, the court found that the petitioner had been pursuing the respondent for payments, and the respondent had admitted its liability through various correspondences. The court cited the Supreme Court's decision in Food Corpn. of India v. Assam State Co-operative Marketing & Consumer Federation Ltd., stating that an acknowledgment of liability need not specify the exact amount and can imply the intention to admit a debtor-creditor relationship. Thus, the court rejected the respondent's contention and held that the petition was not time-barred.

2. Liability of the Respondent to Pay the Claimed Amount:

The court noted that there was no dispute regarding the petitioner having paid Rs. 2,97,000 to the respondent and that the project "Eastern Homes" had not progressed as scheduled. The respondent had acknowledged its liability to refund the amount through various letters and had partially refunded Rs. 1,25,000. The court found the respondent's contention that the petitioner's claim was limited to the provisional amount and not the subsequent payments to be dishonest. The agreement clearly stipulated a refund with interest if the project did not take off, which was the case here. The court also dismissed the respondent's claim that the petitioner failed to make balance payments, leading to the cancellation of the booking, as the project itself had not progressed.

3. Alleged Mutual Settlement Between the Parties:

The respondent claimed there was a mutual settlement under which Rs. 1,25,000 was to be paid in full and final settlement. However, the court found no document supporting this claim. The petitioner had refuted this alleged settlement in response to the respondent's letter dated 12.12.2009. The court noted that the respondent had continued to make further payments even after this date, indicating that the alleged settlement was a false plea. The court concluded that the defense of a mutual settlement was concocted and not supported by credible evidence.

Conclusion:

The court admitted the petition for winding up the respondent company, appointed the Official Liquidator as the Provisional Liquidator to take charge of the respondent's assets and books of accounts, and directed the publication of the petition in specified newspapers. The respondent was restrained from selling or transferring any assets and from operating its bank accounts without the consent of the Official Liquidator. The case was listed for further hearing on 29.05.2014.

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