Calcutta High Court
Shyam Retails (India) Pvt. Ltd vs Bajaj Infracon Pvt. Ltd on 8 January, 2015
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ORDER SHEET
APO No. 509 of 2014
CP No. 711 of 2014
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SHYAM RETAILS (INDIA) PVT. LTD.
Versus
BAJAJ INFRACON PVT. LTD.
BEFORE:
The Hon'ble JUSTICE BANERJEE
The Hon'ble JUSTICE SAMAPTI CHATTERJEE
Date : 8th January, 2015.
Appearance:
Mr. S.N.Mookherjee, Sr. Advocate with
Mr. Supriyo Chattopadhyay, ld. Advocates
For the appellant.
Mr. Sabyasachi Chowdhury, Mr. Kuldeep Mullick
And Ms. A. Poddar, ld. Advocates
For the respondent.
The Court :- The parties would settle their discord. The representatives of the parties are present. They are Mr. Monoj Rungta, Mr.Rama Shankar Bajan and Mr. Gouri Shankar Bajan. The subject matter of controversy would relate to a shop room in City Centre, Salt Lake, Kolkata belonging to the respondent that was let out to the appellant in terms of deed of licensee dated October 26, 2009. The appellant failed to adhere to the terms resulting in cancellation. The respondent already filed a suit for eviction that is pending.
The subject appeal would relate to an order of admission of winding up proceeding initiated at the instance of the respondent as against the appellant alleging insolvency as the appellant could not pay the 2 required charges payable under the said agreement. It is not in dispute, the amount is due since August, 2011 amounting to Rs.2,24,250/- per month.
Mr. Mookherjee, learned senior Advocate appearing for the appellant would inform this Court, the agreement was terminated in May, 2012.
The appellant took the plea before the learned Judge as well as before us, once the respondent filed the suit for eviction, the issue should be adjudicated upon in the civil court and winding up process was not the right approach. The learned Judge rejected such contention. Hence this appeal.
From the judgment and order impugned it appears, His Lordship permitted the appellant to pay off the dues upto July, 2014 in 18 equal monthly instalments together with interest @ 7% p.a. We heard the matter yesterday and felt, the parties should try for a workable solution. Accordingly, the matter was adjourned. Today, Mr. Mookherjee appearing for the appellant on instruction prays for 36 equal monthly instalments to pay off the entire dues. He is also agreeable to adhere to the terms and conditions stipulated in the earlier license agreement upto 2018 as stipulated in the earlier agreement.
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Mr. Chowdhury appearing for the respondent would agree to such offer provided they pay the dues in one go.
The respondent is also agreeable to withdraw the eviction proceeding pending against the appeal.
We have considered the offer and/or suggestion and counter suggestions. We feel, interest of justice would be subserved, if the parties continue to maintain the relationship as per the original agreement adhering to the terms thereof. The agreement would stipulate 15% increase in every three years. Mr. Mookherjee on instruction assures this Court, he would abide by the same. Mr. Choudhury would also assure this Court, he would withdraw the eviction suit.
This would leave us with the sole question as to how the arrears should be cleared off. The appellant is in difficulty, they pray for 36 instalments. We would grant them the same provided they pay interest at the bank rate. We thus permit them to clear off the dues upto December, 2014 in 36 equal monthly instalments commencing from January 15, 2015 and thereafter on 15th day of each succeeding month. The amount would carry also interest @ 9% p.a. calculated on the reducing balance to be paid as and by way of 37th instalment.
This direction for payment would also include current payment payable from January, 2015, that must be 4 paid in accordance with the terms and conditions of the agreement and within the date stipulated in the agreement.
Upon such payment being made, the winding up proceeding would remain permanently stayed. In default of payment of any one instalment, this order would stand recalled and the appeal would stand dismissed. The eviction process would remain stayed for a period of 37 months with the undertaking of the respondent that they would withdraw the same on receipt of the last instalment.
The appellant would, however, be entitled to the credit of the sums already paid in terms of the order of the learned Single Judge.
Before we part with, we must record our deep appreciation for the services rendered by the learned Counsel appearing for the parties to help us to arrive at such a conclusion.
This appeal is, thus, disposed of without any order as to costs.
(BANERJEE, J.) (SAMAPTI CHATTERJEE, J.) dg/