TaxTMI 
TaxTMI 
2018 (2) TMI 2151
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....titioner, is unable to discharge its debt and is commercially insolvent. 2 Petitioner is engaged in the business of development of the land within the area of Mumbai, Navi Mumbai and Raigad District. The company is also in the similar business. 3 The company approached petitioner expressing a desire to purchase lands of petitioner situated at Village Rohinjan, Taluka Panvel, Dist. Raigad. Agreements were entered into between petitioner and the company. Copies of the two agreements, which are the subject matter of this petition, are annexed to the petition. One term and condition of the said agreements was that after execution of the agreements for sale, petitioner was to take steps for change of user by obtaining N.A. orders from the ....
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.... know about this conversion much later and company behind the back of petitioner got it converted, certainly, the company would have got the plots of land converted into NA using the power of attorney. Mr. Walawalkar relied upon the statements of accounts annexed at Page 24 and Page 25 of the petition. Page 24 is in internal ledger account maintained by petitioner for the period 1st April 2012 to 19th March 2015 and page 25, according to petitioner is the confirmation of account given by the company (Exh.'B'). The confirmation of accounts for the period 1st April 2012 to 31st March 2013 is dated 1st April 2013. According to these documents, the amount payable to petitioner is only Rs. 3 crores and not Rs.10,23,08,500/-­ as alleg....
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....ecause land has been attached by the authorities under PML Act, even if the company makes the balance payment today, petitioner will not be able to enter into Deed of Conveyance; (d) If petitioner's case was that even after the N.A. orders were passed, the company did not come forward to have the sale deed executed, the claim can only be for damages for breach of contract and that cannot be a debt as defined under the Companies Act, 1956 and unless petitioner obtains a decree, they cannot file a winding up petition. (e) The post dated cheques which were given by company to petitioner was only by way of security to ensure that the company fulfills its obligation under the contract. 9 After hearing the opposing counse....
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.... transactions between the parties. Even the confirmation of accounts, assuming it says that Rs.3 crores is still payable from company to petitioner, there is nothing to indicate that this amount is payable with respect to the land described in para 9 of the petition or under the said agreements. 11 Whether petitioner can execute conveyance of the land with the company or whether company can use the power of attorney to have the land conveyed in their favour, assuming company makes payment of the balance amount in view of the land being attached under PML Act, are questions that cannot be summarily decided. Moreover, it is petitioner's case that company has not fulfilled its obligations under the Contract inasmuch as company was unabl....