URBAN INFRA NIRMAAN PVT LTD Vs. ANIL TANNA

JUDGEMENT

(1.) In this application under Sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter referred to as "the Act of 1956") the petitioner has prayed for winding-up of the company with consequential directions to be passed by this Court.

(2.) It is the case of the petitioner that he paid Rs.2,80,00,000/- to the company as advance towards purchase of 10,000 square feet of built up area in a project developed by the latter at Vrindaban, Mathura (hereinafter referred to as the "said Property"). However, the company did not transfer the said property promised to the petitioner and, as such, the petitioner was entitled to obtain refund of the said amount of Rs.2.80 crores from the company. On August 13, 2014 an agreement was entered into by and between the petitioner and the respondent whereby the latter admitted its failure to transfer the said property to the petitioner and agreed to repay the said amount of Rs.2.80 crores to the petitioner together with agreed rate of interest. A copy of the said agreement dated August 13, 2014 has also been disclosed in this application. In order to discharge its obligation under the said agreement dated August 13, 2014, the company issued various post dated cheques of diverse amounts to the petitioner, all of which were dishonoured on presentation to the bank for encashment.

(3.) On July 15, 2015 when the petitioner issued the notice under Section 434 of the Act, 1956 to the company, a sum of Rs.1,46,75,288/- remained due and payable by the company to the petitioner on account of the dishonoured cheques. The company received the said notice dated July 15, 2015 and by its letter dated August 3, 2015 addressed to the petitioner alleged that since the petitioner is a foreign resident, in view of the provisions contained in Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulation, 2000, he could not lawfully pay the said amount of Rs. 2.80 crores to the company, more so, when the said property at Vrindavan was to be developed on an agricultural land. The company alleged that the agreement under which the petitioner paid Rs.2.80 crores to it is an illegal agreement which is void ab initio and it has filed a suit being T.S. No. 861 of 2015 before the learned 2nd Civil Judge (Senior Division) at Barasat praying for a declaration that the said agreement dated August 13, 2015 be adjudged void, delivered up and cancelled. In its affidavit-in-opposition the company admitted to have received the amount paid by the petitioner to purchase the said property, the execution of the agreement dated August 13, 2014 as well as the issuance of the post dated cheques for the amount of Rs. 2.80 crores by it to the petitioner. The company did not dispute the dishonour of the cheques amounting to Rs. 1,46,75,288/- upon presentation by the petitioner for encashment. The company, however, alleged that since the petitioner is a foreign resident, in view of Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulation, 2000 and he cannot ask for refund of any money as claimed in the application.