TaxTMI 
TaxTMI 
TaxTMI 
2014 (4) TMI 1324
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....persons who had entered into an agreement to purchase an apartment bearing no.704 in the 'F' Block of such apartments measuring about 760 Square Feet along with a car parking space, for a total consideration of Rs. 69,14,000/-. The agreements for construction and sale, respectively, were dated 12-3-2007. Under the agreement, the petitioner was required to make periodical payments dependant on the progress in construction as per the Schedule prescribed thereunder. As on the date of the petition a total sum of Rs. 62,22,600/- is said to have been paid to the respondent by the petitioner. The completed apartment was to have been handed over to the petitioner by 30-4-2009 or atleast by 30-4-2010, if the grace period provided under the agreement is taken into account. It transpires that the petitioner had obtained financial assistance from M/s Kotak Mahindra Bank Ltd. and there was a tripartite agreement with the bank along with the petitioner and the respondent - the amounts were released in favour of the petitioner by the bank at the appropriate stage of construction. The structural construction is said to have been completed rapidly and 90% of the payment had been released, it is al....
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....atha expenses and applicable tax. The petitioner himself has produced a statement of account, wherein it is shown that towards maintenance deposits Rs. 1,86,500/- plus tax is payable, towards BESCOM, BWSSB and documentation charges Rs. 4,84,980/- is also payable and that therefore a net balance of Rs. 13,85,851/- is still payable to the respondent, which has not been paid even though required to be paid. The petitioner is aware that without these additional deposits and payments being made, there would be difficulty in obtaining clearances in time. However, in the light of these payments still being outstanding from the petitioner, it is not open to the petitioner to unilaterally terminate the agreement and contend that there is a delay in construction and to seek for monies on such ground. As stated by the petitioner himself, he has borrowed a loan from the bank and has entered into a loan agreement with the Bank. It is the Bank which has made substantial payment to the respondent. The petitioner has relied upon a tripartite agreement entered into with the bank. The terms of that tripartite agreement would clearly show that the petitioner has no rights whatsoever to terminate the....
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....the Bank has already initiated the action under the SARFAESI Act and the Bank has proceeded against the secured asset, that is the apartment in question, in relation to which, there were transactions between the petitioner and the respondent company. That under the SARFAESI Act, the Bank takes complete control and charge of the secured asset. Under the provisions of the SARFAESI Act, once the secured asset is seized and possession is taken, the question of making any payments to the petitioner would not arise at all. In this regard, attention is also drawn to the Tripartite Agreement produced by the petitioner himself at Annexure-H. Clause (7) of the said Agreement makes it clear that the Developer, the respondent herein had undertaken not to pay any amounts to the borrowers in the event of cancellation of the allotment or booking or allocation of the flat without the written consent of the Bank. It is further contended that this court had directed the respondent to negotiate with the Bank and bring about a settlement. In that regard, the respondent has interacted with the Bank and sought for particulars. The respondent has sent mails dated 13.04.2013 and again 16.04.2013 to provi....
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....y an order dated 28-6-2013 had directed that M/s Kotak Mahindra bank be made a party to these proceedings. The cause title has not been amended though. The bank has entered appearance through counsel. 5. However, the respondent has now filed a memo dated 28.3.2014, which reads as follows: "MEMO FILED BY THE RESPONDENT The respondent above named humbly submits as follows: 01. The present petition is filed requesting this court to pass an order for winding up the respondent company. The respondent company has taken several contentions to the effect that the petition is not maintainable. The respondent however without prejudice to its rights and contentions has paid a sum of Rs. 10,00,000/- before this court itself. The particulars of the balance amount due with 10% interest is as follows: Sl. No. Particulars Amount Paid 01 Total Amount received from petitioner towards flat No.704, Block "F", Rs.57,22,600/- 02 Amounts paid to the petitioner as on date Rs.10,00,000/- 03 Balance Payable Rs.47,22,600/- 04 Interest at the rate of 10% p.a. from 05.01.2010 on Rs. 57,22,600 and on Rs. 47,22,600 from 10.11.2012 to 28.08.2014 Rs.25,27,131/- 05 Balance Rs.72,49,731/- ....
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....artment in question, pursuant to an order passed under the provisions of the SARFAESI Act and hence, the question of the matter being settled on payments now assured by the respondent is impractical. It is also claimed that the Bank cannot claim to have any right over the property in question and it cannot be brought to sale by the bank, it has neither a contractual or statutory right to do so. In the above background, it is the claim of the respondent that it cannot be said that it is unable to pay its debts and would assert that the monies due to the respondent have even been repaid to an extent of Rs. 10.00 lakh and the balance sum of money in a sum of Rs. 47.22 lakh is sought to be repaid in the manner as stated above. In the alternative it is suggested that if the petitioner insists on an immediate and total repayment of the money with interest at least at the rate of 10% per annum, it would be possible if the apartment is permitted to be sold to a third party. The proceeds from such sale could not only satisfy the dues of the Bank, it would also satisfy the dues payable to the petitioner. This would however, require the petitioner to agree to give a quietus to all matters ar....