TaxTMI 
TaxTMI 
2014 (6) TMI 711
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....d 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." 2.2 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 ....
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....titioner once again called upon the respondent to pay the entire sum along with interest at the rate of 9% per annum. 2.5 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. 2.6 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 2.7 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, under Section 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 da....
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....ngly 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. 8. I have heard the learned counsel for the parties. 9. The facts of this case clearly indicate that there is no dispute that the petitioner had p....
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....tention 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. 13. 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 Food Corpn. of India v. Assam State Co-operative Marketing & Consumer Federation Ltd. [2004] 12 SCC 360, the Supreme Court has held as under: "14. According to Section 18 of the Limitation Act, an acknowledgement of liability made in writing in respect of any right....
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.... had not taken off. Thus, the question of the petitioner making further payments did not arise. 17. 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....