SESA INTERNATIONAL LIMITED Vs. AVANI PROJECTS & INFRASTRUCTURE LIMITED & ORS.
LAWS(CAL)-2017-9-2
HIGH COURT OF CALCUTTA
Decided on
September 05,2017
SESA INTERNATIONAL LIMITED
Appellant
VERSUS
Avani Projects And Infrastructure Limited And Ors.
Respondents
JUDGEMENT
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(1.) Soumen Sen, J. Code Of Civil Procedure, 1908 Order 39OR.38R.1OR.38R.2OR.38R.3OR.38R.4OR.40R.1OR.38R.5OR.38R.10OR.39R.1(A)OR.39R.1(C)OR.39R.1(B)OR.39R.1(B) Income Tax Act, 1961 S.2(47) Partnership Act, 1932 S.8S.14S.15 Securitisation And Reconstruction Of Financial Assets And Enforcement Of Security Interest Act, 2002 Padam Sen V. State Of U.P., AIR 1961 SC 218 REFERRED TO Anand Prasad Agarwalla V. Tarkerhwar Prasad,, 2001 5 SCC 568 REFERRED TO Boeing Company Vs. R.M. Investment And Trading Co. Pvt. Ltd., 1994 99 CWN 1 REFERRED TO S. Saleema Bi V. S. Pyari Begum,, 2000 9 SCC 560 REFERRED TO Parmanand Patel V. Sudha A. Chowgule,, AIR 2009 SC 1593 REFERRED TO Ashok Traders V. Gurumukh Das Saluja,, AIR 2004 SC 1433 REFERRED TO Industrial Credit And Investment Corpn. Of India Ltd. V. Karnataka Ball Bearings Corpn. Ltd.,, AIR 1999 SC 3438 REFERRED TO Edwards And Co. V. Picard,, 1909 2 KB 903 REFERRED TO Aslatt V. Corpn. Of Southamption,, 1880 16 CHD 143 REFERRED TO (Bhupendra Nath Mookherjee V. Monoher Mukherjee,, AIR 1924 CAL 456 REFERRED TO Madhu Lal V. Ramji Das Chironji Lal,, AIR 1953 MB 85 REFERRED TO Debendra V. Rup Lall, REFERRED TO Lai Umrao V. Lal Singh, 1924 46 ILRALL 917 REFERRED TO Sakhiuddin V. Sonaullah,, AIR 1918 CAL 411 REFERRED TO
Soumen Sen, J. 1.The three applications filed by the plaintiff, the defendant No.2 and Reliance Commercial Finance Ltd. are disposed of by this common judgment.
(2.) The petitioner claims to be an allottee of 21,000 sq.ft. of super built up area in service apartment in project 'Avani Grand' located at 8, JBS Haldane Avenue, Kolkata- 700 105 (hereinafter referred to as "said property"). It is alleged that the respondent has agreed to allot the same at a price of Rs.10,000/- per sq.ft. aggregating to Rs.21 crores. It was represented on behalf of the respondent that the construction work would commence within August, 2014 and would be completed by December, 2016.
(3.) Pursuant to the agreement, the petitioner paid Rs.21 crores by RTGS through its banker. Since the construction work did not commence, the respondent no.2 proposed to refund the said sum of Rs.21 crores with interest at the rate of 18% per annum till the date of repayment as also pre- estimated damages of Rs.8 crores by way of compensation upon the petitioner agreeing to terminate the said allotment. It is claimed that the parties have mutually agreed to settle their disputes and the respondents have made payment of five instalments through RTGS aggregating to Rs.4.25 crores out of Rs.8 lakh payable towards compensation and/or pre- estimated damages leaving balance amount of Rs.3.75 crores. The petitioner has disclosed the particulars of the cheques aggregating to Rs.35,88,34,387/- payable on account of refund of the consideration amount along with pre-estimated damages and compensation. The said cheques were dishonoured on presentation and returned to the plaintiff with the endorsement "insufficient funds". The twenty-three several cheques aggregating to a sum of Rs.35,88,34,387/- were issued by the respondent no.1 after deducting the amount of tax deducted at sources (TDS). The said respondent also did not submit the certificate of tax deduction at sources in spite of requests. The amount of TDS deducted by the respondent no.1 comes to Rs.1,23,70,489/-.;
(2.) The petitioner claims to be an allottee of 21,000 sq.ft. of super built up area in service apartment in project 'Avani Grand' located at 8, JBS Haldane Avenue, Kolkata- 700 105 (hereinafter referred to as "said property"). It is alleged that the respondent has agreed to allot the same at a price of Rs.10,000/- per sq.ft. aggregating to Rs.21 crores. It was represented on behalf of the respondent that the construction work would commence within August, 2014 and would be completed by December, 2016.
(3.) Pursuant to the agreement, the petitioner paid Rs.21 crores by RTGS through its banker. Since the construction work did not commence, the respondent no.2 proposed to refund the said sum of Rs.21 crores with interest at the rate of 18% per annum till the date of repayment as also pre- estimated damages of Rs.8 crores by way of compensation upon the petitioner agreeing to terminate the said allotment. It is claimed that the parties have mutually agreed to settle their disputes and the respondents have made payment of five instalments through RTGS aggregating to Rs.4.25 crores out of Rs.8 lakh payable towards compensation and/or pre- estimated damages leaving balance amount of Rs.3.75 crores. The petitioner has disclosed the particulars of the cheques aggregating to Rs.35,88,34,387/- payable on account of refund of the consideration amount along with pre-estimated damages and compensation. The said cheques were dishonoured on presentation and returned to the plaintiff with the endorsement "insufficient funds". The twenty-three several cheques aggregating to a sum of Rs.35,88,34,387/- were issued by the respondent no.1 after deducting the amount of tax deducted at sources (TDS). The said respondent also did not submit the certificate of tax deduction at sources in spite of requests. The amount of TDS deducted by the respondent no.1 comes to Rs.1,23,70,489/-.;
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