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Please find text of order by the Honble High court of Delhi
IN THE HIGH COURT OF DELHI AT NEW DELHI
CO. APP. 94/2012
MADHUR MITTAL AND ANR. ..... Appellant
Through Mr. Harish Malhotra, Sr. Advocate with Mr. Sanjay S. Chhabra,
DINESH MITTAL AND ORS. ..... Respondent
Through Mr. Soumitra G. Chaudhuri, Advocate for MSP Steel and Power.
Mr. Sarat Chandra and Mr. Sachin Chandra, Advocates for petitioning
creditors in C.P. No.333/2010.
Mr. Atul Nanda, Sr. Advocate with Mr. Rakesh Kumar and Mr. Rajat
Brar, Advocates for Investors.
Mr. Jitendra Gupta, Advocate for Bati Devi.
Mr. Puneet Gupta, Advocate for Income Tax Department.
Mr. Jay Savla, Advocate for SICOM.
Ms. Gunjan Kumar, Advocate for OBC.
Mr. P. Nagesh and Mr. Rajat Aror, Advocates for applicant Sanchar
Mr. Bob Madan and Mr. Rahul Juneja, Advocate for OM Telecom.
Mr. Jagdish Prasad, Advocate.
Mr. Rajiv Bahl, Mr. Ashish Makhija and Ms. Ankita, Advocates for
Mr. H.L. Tiku, Sr. Advocate with Ms. Poonam Singh and Mr. Yadunath
Singh, Advocates for BSF Family Welfare Society.
Mr. Raman Kapoor, Sr. Advocate with Ms. Suruchi Aggarwal, Advocate for TFA Association.
Mr. Amit Gaurav, Advocate for respondent No. 5.
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUAL
O R D E 11.07.2013
CM No. 7975/2013
This application has been filed by the Official Liquidator seeking clarification of the orders dated 11th February, 2013 and 20th November, 2012.
It is stated in the application that during the course of implementation of the order dated 11th February, 2013 certain anomalies and difficulties in compliance have been noticed. Our attention has been drawn to order dated 11th February, 2013 and the role and obligation of the official liquidator, wherein after referring to the land of the company at Daruhera, Rewari and Ghaziabad, we have recorded with reference to plotted land at Faridabad that the Official Liquidator will keep the factum i.e. land has been acquired and compensation has to be paid or received and would proceed accordingly.
Secondly, our attention is drawn where with regard to the claim of Triveni Ferrous Infrastructure Private Limited, it is mentioned that this aspect could be examined by the Company Judge.
Our attention is also drawn to the paragraph wherein we have said that we had not quantified the amount due and payable to the secured and unsecured creditors, including the flat buyers and nor had we determined which other properties were owned by Triveni Infrastructure Development Company Limited.
It is brought to our notice that we have stated that identification of unsecured creditors is required and the said exercise should be undertaken by the Company Court expeditiously for determining the exact claim of all unsecured creditors to ensure paymentto them.
We have also recorded that the decision on any of these aspects should not however become an impediment in the sale of the projects.
2. Learned counsel for the Official Liquidator submits that if the aforesaid exercise is to be done, then the restrictions or the restraints put on the official liquidator, will lead to ambiguity and in fact result in contradiction. Official liquidator as a provisional liquidator cannot perform the said tasks and the directions given in the order dated 14th February, 2013 will remain a non starter. The restriction or restrain is recorded in the following paragraph of the order dated 14th February, 2013;-
?The interim order and directions issued in the order dated 20.11.2012 shall continue, except to the extent it has been directed that the two projects, namely, ?Triveni Galaxy? situated at Sector-78 and ?Triveni Signature? situated at Sector-89, Faridabad should be sold in a public auction by the Company Court.?
By order dated 20th November, 2012, a division bench while issuing notice had directed that the appellants as well as the official liquidator who had taken the charge shall maintain status quo.
3. Our attention is also drawn to the order dated 14th February, 2013 passed by the single Judge wherein, he noticed the observations made by us in the order dated 11th February, 2013 and had observed:-
?4. To the extent that the DB has directed the continuation of the interim order dated 20th November, 2012 requiring the Official Liquidator (?OL?) to maintain status quo, it appears that the OL cannot take further steps in his capacity as provisional liquidator (?PL?) as of now. Mr. Rajiv Bahl, learned counsel states that the OL would like to seek further clarification from the DB in that regard.?
4. It has been pointed out to us that two private parties, namely, Zyon Infrastructure Private Limited and Pal Infrastructure and Development Private Limited have filed applications before the Company Judge, pursuant to liberty granted by us subsequent to order dated 11th February, 2013, claiming that they have interest in land at Sector 78, and have partly constructed flats and have entered into agreements with various third parties/flat buyers. Our attention is drawn to the order dated 11th February, 2013 wherein we have recorded the statement of Mr. Malhotra that the total acreage of the project Triveni Galaxy is 37 acres and total acreage of the project Triveni Signature is 14 acres. He has submitted that in the garb of ?status quo? order, Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta are not furnishing following details:
(i) Original/eligible copies of the title deeds.
(ii) Balance sheets for last five years from 2008-09 onwards.
(iii) Annual return for last five years.
(iv) Books of accounts for last five years and statutory records.
(v) Details of flat buyers/investors/other buyers with relevant details.
(vi) Details of secured and other unsecured creditors with copy of charge
(vii) Details of loans, advances and investments.
5. He seeks permission to break open the lock(s) of the registered office of which possession was taken over by the Official Liquidator, to prepare inventory in the presence of Mr. Madhur Mittal, Mr. Sumit Mittal or Mr. B.N. Gupta. He further submits that the order of status quo is being interpreted as a restrain order which bars and prohibits the Company Judge and the official liquidator from proceeding as per law. The paragraph which refers to the status quo order in the order dated 11th February, 2013 is in conflict with other observations made in the same order about steps which have to be taken.
6. Mr. Harish Malhotra, who appears for Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta states and submits that copies of the title deeds of the property have already been submitted but as required they shall furnish certified copies of the title deeds after obtaining the same from the Sub-Registrar?s Office within 12 weeks. He submits that title deeds are in fact with various bankers, details of which will be given. As far as the balance sheets and annual returns are concerned, he states that the same are ready till the year ending 31st March, 2010.
Thereafter, the balance sheets have not been prepared as the records are lying seized. Balance sheets and annual returns till the year ending 31st March, 2010 will be furnished again to the Official Liquidator. He states that they have no objection and Mr. Madhur Mittal, Mr. Sumit Mittal or Mr. B.N. Gupta will be present at the time of breaking open of the lock at the registered office and thereafter their duly certified authorised representative will be present and will also sign the inventory list. Statutory records and the annual books of accounts are available in the registered office. Details are available in the said records. Photocopy of the required records can be made and one copy can be given to the authorised representative and the other can be retained by the Official Liquidator.
Thereafter, the registered office can be re- sealed and in case the registered office is required to be re-opened for any purpose, direction can be taken from the Company Judge.
7. As far as identification, demarcation and/or fencing of the properties at Rewari, Daruhera and Ghaziabad is concerned, Mr. Harish Malhotra states that his clients want to and will fully cooperate with the Official Liquidator as it is in their interest. The said exercise will be undertaken by the Official Liquidator with the help and assistance of Mr. Madhur Mittal, Mr. Sumit Mittal or Mr. B.N. Gupta or their certified authorised representative.
8. Statements made on behalf of Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta are taken on record. They will be bound by the same.
9. As far as possession of the lands and properties of the company is concerned, the same will remain with the Official Liquidator but Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta or their certified authorised representative can visit the lands to ensure that there is no encroachment or third party rights or objection etc. are dealt with. They will be permitted to visit any land after informing the Official Liquidator. As far as responsibility for security, protection and funds etc. for protecting the land is concerned, Company Judge will decide the said aspect after hearing all sides. Company Judge will be at liberty to modify and amend the directions given above with regard to the possession. If required and necessary, police assistance can be taken.
10. It is pointed out Income-tax appeal has been preferred against the assessment order making substantial addition by Mr. Madhur Mittal and Mr. Sumit Mittal. Official Liquidator has also filed an appeal. Thus, it appears that Mr. Madhur Mittal and Mr. Sumit Mittal and the Official Liquidator both have filed appeals against the said order.
This aspect will be examined by the Company Judge and appropriate steps and directions will be given to ensure that the appellate proceedings are properly attended and prosecuted. Interest of the company and creditors should be protected.
11. We clarify that we have not deliberately commented or referred to SFIO reports and the defence or the comments of Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta and these are not subject matter of the order dated 11th February, 2013. This is an aspect which is pending before the Company Judge.
12. In the order dated 11th February, 2013, we have recorded the consent of Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta that land at Faridabad should be sold. It appears that the said process has started but applications filed by Zyon Infrastructure Private Ltd. and Pal Infrastructure and Development Private Limited are pending.
At the first instance, every attempt will be made to proceed with the sale but in case there is impediment and difficulty in sale of the said land, it will be open to the Company Judge to proceed further in respect of other lands in accordance with law. Whether or not process for sale of other lands should be initiated, will be decided by the Company Judge after hearing all parties concerned.
13. The flat buyers who are unsecured creditors are facing considerable hardship and suffering because their money is stuck, the project has stopped midway and they may have also taken interest bearing loans. Our primary interest and concern is to protect, help and secure them. We clarify the status quo order should not mean that the Company Judge cannot and should not proceed in accordance with law. It is only means and states that at the first instance attempt should be made to sell the two property at Faridabad and only in case of any impediment or difficulty or in case payments cannot be made or are delayed, further steps could be taken. Proceedings have not been stayed and the Company Judge is entitled to and can pass appropriate and required orders.
It is submitted that publication and filing of statement of affairs at this stage may create problems and will not serve any purpose. We have recorded statement on behalf of Mr. Madhur Mittal, Mr. Sumit Mittal and Mr. B.N. Gupta with regard to details, books of accounts, etc. The said details/papers must be furnished. In view of the said position, at this stage, publication of the advertisement admitting the winding up petition and statement of affairs need not be filed. However, if at any stage, the Company Judge feels that publication and statement of affairs is required to be filed, it will be open for him to direct so, in accordance with law.
The application is disposed of.
REVIEW PETITION NOS. 240/2013 and 251/2013
In view of the order passed above, many apprehensions/aspects have been answered and dealt with. We note that flat buyers are unsecured creditors and many of them may have different view points; some of them may want possession of their unconstructed flat, someone may want unconstructed flat to be sold, some others may want that their liabilities should be paid by a purchaser or a third party should be directed to complete the construction. It will be difficult to reconcile everyone?s interest which may be conflicting. It was in these circumstances, at the first stage it was suggested that let the properties at Faridabad i.e. the under construction flats should be sold so that the money is paid to the flat buyers expeditiously and at the earliest point in time. This may not satisfy everyone or all the unsecured creditors.
Given the situation, this was the best possible solution available at that time and even today. As noted in the order dated 11th February, 2013, it has been stated that part payments have been made for land at Daruhera, Rewari and Ghaziabad. We also note that winding up petition has been only admitted and final winding up order has not been passed.
Sale of properties under law requires consent of the directors etc. We do not think it will be proper or to completely withdraw and unwrite the order dated 11th February, 2013 and record that the properties at Faridabad should not be sold. Steps for valuation etc. have been taken by the Company Judge. With the consent of the parties, it was directed that the properties at Faridabad should be sold.
Consent given was informed consent. With the aforesaid observations, we dismiss the review applications.
SANJIV KHANNA, J.
SIDDHARTH MRIDUAL, J.
JULY 11, 2013
$ Part IIB (R-11)