RITIKA PVT LTD Vs. OMAXE CONSTRUCTION LTD

JUDGEMENT

(1.) THIS is a petition under S. 433 of the Companies Act, 1956 for winding up of m/s Omaxe Construction Ltd, along with CA. No. 1549/09 for appointment of a provisional Liquidator. The respondent company carries on the business of construction and is stated to have been incorporated under the Companies Act, 1956 in 1989 and has its registered office in New Delhi.

(2.) ON 23rd June, 2006, the petitioner company/intending Lessee entered into an unregistered Agreement to Lease with the respondent company/intending Lessor for opening a showroom in premises bearing No. GF 37, located on the Ground floor at Plot No. 3/26, Bye-pass Road, Ward Hari Parwat, Agra, Uttar Pradesh, having a super area of approximately 204. 51 square metres. The said Agreement has been annexed to the petition as "annexure B". Clause 3 thereof states that the lease was initially for a period of 3 years, to be calculated from the date of the grant of a Completion Certificate by the concerned authorities, to be renewed for a further 2 terms of 3 years each at the option of the Intending lessee, on terms and conditions to be mutually decided as per the Agreement. The respondent company was to undertake the construction of a Mall at the demised Premises, which would thereafter enable the Intending Lessee to carry on the business of garments and apparel under the brand/trade name of Ritu kumar. Clause 2 of the Agreement states that the said Mall was to be constructed by the Intending Lessor by 31st March, 2008, which would be extended in the case of force majeure circumstances and/or reasons beyond the control of the Intending Lessor.

(3.) THE petitioner company, as per its obligations under Clause 6 of the agreement, paid the respondent a total sum of Rs. 4,62,276/- vide Cheque Nos. 788104 and 412218, drawn on Citi Bank, Delhi, towards an interest-free security deposit equivalent to three months rent. Part of this payment was made prior to the signing of the Agreement, and the balance was paid at the time of signing of the Agreement. The petitioner states that the second cheque was encashed on 1st June, 2006, and that the said deposit was subject to compliance with the terms and conditions stipulated in the Agreement to Lease dated 23rd June, 2006.