SMT. USHA JAIN & ANR. vs M/S VIGNESHWARA DEVELOPWELL P. LTD
CO Pet 145 of 2014
Facts:
1. Petitioners herein jointly applied for allotment of a commercial unit admeasuring 500 sq. feet in a Technology Park Project being developed by the respondent company in Gurgaon, at the rate of Rs. 5500 per sq. foot by way of letter dated 20.08.2012 addressed to the respondent company, the petitioners exercised the option to return the allotted unit in terms of Clause 2.4 of the Buy Back Plan and claimed a sum of Rs. 44,41,250/- from the respondent company, as provided under Clause 2.1 of the agreement. Another letter dated 26.04.2013 was sent by the petitioners, seeking the claimed amount. However, since the respondent company gave no reply to the said letters, the petitioners preferred the present company petition, bearing CO.PET. 145/2014, seeking winding up of the respondent company
2. Application has been preferred under Section 151 of the Code of Civil Procedure, 1908 on behalf of the applicants/petitioners, who are stated to be Non-Resident Indians, seeking release of an amount of Rs. 44,41,250/- in terms of order of this Court dated 24.04.2014.
Issue: Whether the application can be allowed ?
Argument:
Petitioner:
1. Counsel submitted that they were misinformed and misguided by their previous counsel, as a result of which they were not in the know of these proceedings or aware of the disposal of CO.PET. 145/2014, which was moved on their behalf. It is stated that they only became aware of these developments on a recent visit to India. It is urged on their behalf that their claim for the amount stated became crystalised on the instance of the respondent company acknowledging the sum of Rs. 44,41,250/- to be due and payable, which was recorded in the order dated 24.04.2014, and therefore, there was no occasion for the petitioners to file a claim before the Official Liquidator, which fact they could not bring to the attention of this Court on account of the unprofessional and inefficient conduct of their previous counsel.
Decision: HC dismissed the application.
Rationale:
1. It held that here is merit in the plea advanced by the learned counsel for the applicants that the right of the petitioners to seek refund of their investment in terms of the „buy-back‟ clause in the contract dated 04.04.2010 with the respondent company had crystallized on 24.04.2014, much before the winding up order was passed appointing a Provisional Liquidator on 22.07.2016. However, what turns the table against the petitioners is the fact that they neither furnished the requisite certificate from FEMA nor came out with the plea that such certificate was not required, and thereby evidently delaying the release of the amount deposited with the Registrar General of the High Court, on their own fault.
2. It held that To be specific, no action was taken on their behalf since the date relief was granted to them initially vide order dated 24.04.2014, and it was only as late as 16.09.2023 that the present application was instituted wherein wild allegations have been levelled about the incompetent and unprofessional advice on the part of their counsel who was representing them earlier.
3. It is manifest that the amount towards investment had been deposited with the Registrar General pursuant to the directions dated 24.04.2014, but the petitioners also failed to comply with the necessary formalities, and eventually waived their rights in lieu of placing a claim for the said amount before the Official Liquidator. The fact that no claim is lodged before the Official Liquidator is another story.
Order:
