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TMI Blog2012 (10) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... petition an amount of Rs. 9,60,53,750/- was outstanding against the respondent, which includes the principal loan amount of Rs. 5,75,00,000/- and interest amount of Rs. 3,85,53,750/- due for the period 3.9.2002 to 24.5.2006. It is also the case of the petitioner that since the respondent company had failed to pay the said outstanding dues despite service of demand notice dated 25.5.2006 under Sections 433 and 434 of the Companies Act, 1956, therefore, the petitioner had filed a winding up petition. The petitioner has also claimed that during the pendency of the present winding up proceedings, in order to defeat the legal rights of the creditors including the applicant/petitioner the respondent company and its Directors namely Mr.G. Sagar Suri, Mr. Ujwal Suri and Mr. Narender Suri had sold their huge chunk of land in favour of M/s Amba Realtors Pvt. Ltd., M/s Nipun Builders & Developers and M/s S.R.K. Realtors Pvt. Ltd. through various sale deeds. The petitioner has given the details of such properties, which are as under:- i. 8500 sq.meters of residential land situated at village Mohiuddinpur Kanawani, Tehsil Dadri, District Gautam Budh Nagar (UP) sold in favour of M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to these contempt petitions and thereafter, the respective rejoinders were filed to these replies by the Petitioner. 5. Mr. Santosh Kumar, the learned counsel representing the petitioner submitted that on the date of the filing of the winding up petition an amount of Rs. 9,60,53,750/- was due and outstanding against respondent No. 4 company but instead of liquidating their entire outstanding liability, respondent No. 4 came forward to pay an amount of Rs. 5.75 crores, which amount was accepted by the petitioner without prejudice to their rights and contentions. The counsel further argued that in terms of the loan agreement, the respondents No. 1 to 4 are liable to pay interest @ 18% per annum as the same being the contractual rate of interest agreed between the parties. The counsel further submitted that the respondent Nos. 1 to 4 cannot avoid the said liability of paying interest at an already consented rate. The counsel further submitted that as per the settled legal position the payment of Rs. 5.75 crores made by the respondent Nos. 1 to 4 has to be first adjusted against the interest amount, and not against the principal amount, therefore, respondents No. 1 to 4 cannot take a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Before concluding his arguments, Mr.Santosh Kumar, counsel representing the petitioner did not press the reliefs under Section 542 of the Contempt Act and submitted that the present contempt petitions filed by the petitioner be treated under Sections 10 & 11 of the Contempt of Courts Act read with Article 215 of the Constitution of India. 8. Opposing the present petitions, Mr. Girdhar Govind, counsel representing respondent Nos.1 to 4 at the outset submitted that the petitioner has no locus standi to file these petitions as the petitioner has no existence in the eyes of law, after the amalgamation of the petitioner company with M/s Avanta Realty Ltd. The contention raised by the counsel for the respondent Nos. 1 to 4 was that the petitioner has not taken any steps to place on record the scheme of amalgamation and their prospective rights, if any, derived by the new company for prosecuting the present contempt proceedings. The counsel further argued that a friendly loan was advanced by the petitioner in favour of respondents No 4 with a view to bring the company out of the financial crises and with the mutual understanding of the parties rate of Interest was agreed at 6% p.a. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by this Court. Counsel further submitted that in fact the respondent No.7 had purchased the property being subject matter of sale deed dated 9.11.2006 vide registered sale agreement dated 4.8.2006 and, therefore, it cannot be said that the said sale in favour of the respondent No.7 is in violation of the Court order dated 15.9.2006. It was further argued that under the said agreement to sell, the transaction was to be completed within a period of 100 days and accordingly the sale deed was executed on 9.11.2006 after the respondent no.1 had completed their part of the obligation, arising out of the registered agreement to sell dated 4.8.2006. Counsel further submitted that respondent No. 7 had further sold the said property in favour of respondents No.10 and 11 vide sale deed dated 22nd April, 2009; and no action was initiated by the petitioner against respondent No. 7 at any stage prior to the execution of the sale deed dated 22nd April, 2009. Counsel also argued that the present petition filed by the petitioner is clearly barred by limitation. Counsel also submitted that in the event of this Court taking a view against the respondents No.1 to 4 holding them guilty of conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aforesaid settled legal position, I will proceed to examine the core issue viz. whether the respondents have committed contempt of this court by wilfully disobeying the order dated 15.9.2006. The case of the petitioner in both the contempt petitions in nutshell is that the petitioner had filed a winding up petition under Section 433(e) of the Companies Act, 1956 against the respondent no. 4 company as the respondent no 4 had failed to repay the loan amount of Rs.5,75,00,000/- along with interest @18% p.a., despite service of demand notice dated 25.5.2006 and in the said company petition, vide order dated 15.9.2006 this court restrained the respondent no 4 company from disposing of or parting with and/or renting out any immovable property except with the permission of this court. Since the said interim order is at the heart of the controversy, therefore, the same is reproduced as under: "15.09.2006 Present: Mr. D.K. Malhotra & Mr. Rakesh Malhotra for the petitioner. Mr. Girdhar Govind for the respondent. At the request of the respondent, five weeks time is granted to file reply. Rejoinder, if any, be filed within four weeks thereafter. In the meanwhile, the respondent is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said agreement to sell was executed prior to the grant of the said injunction order dated 15.9.2006. The stand taken by the respondent nos. 1 to 4 in reply to both the said contempt petitions is that the sale transactions which took place were not in any manner intentional so as to violate the interim order dated 15.9.2006 but to clear off the liability of the respondent No.4. 15. This court vide order dated 15.9.2006 gave a clear mandate to the respondent no.4 to seek permission of the court before entering into any sale transaction but the respondents no.1 to 4 in utter disregard and blatant defiance of the said injunction order kept on selling its lands to various buyers who are also now facing the brunt of contumacious and contemptuous conduct of the respondents no. 1 to 4. Undoubtedly, the respondents no. 1 to 4 could have approached this court to seek leave for the sale of its properties if at all the respondents no. 1 to 4 felt the necessity of paying off their financial liabilities towards various creditors, but in any case, these respondents could not have sold their properties in violation of the said stay order granted by this court. The respondents no. 1 to 4 by s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for the pre-suit period. So far the pre-suit interest is concerned, I find in the addendum to the loan agreement dated 29.8.2002 the respondent no. 4 company had duly agreed to pay interest @ of 18% p.a. on the loan amount and therefore the respondents no. 1 to 4 cannot escape from their liability from paying the said rate of interest so far pre-suit period is concerned. However, so far pendente lite and future interest is concerned certainly this court can exercise its discretion under Section 34 of the Code of Civil Procedure, 1908. During the course of arguments, Mr. Girdhar Govind counsel for the respondent has given an offer of paying the amount towards the interest if the same is awarded from the date of filing of the petition after adjusting the amount which is already paid by the Respondent Nos. 1 to 4. The counsel also urged that a reasonable rate of interest may be fixed somewhere between 6% p.a. to 9%p.a. and in any case not @18% p.a. The counsel further submitted that the respondent will liquidate its entire liability maximum within a period of three months. The respondent in their reply has also tendered unqualified apology for having entered into such sale transact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 18.10.2011 passed by the company court sanctioning the scheme of amalgamation of petitioner company with Avantha Realty Ltd. in terms of Sections 391 & 394 of the Companies Act. With the said facts being on record the locus-standi of the petitioner company cannot be challenged by taking a hyper-technical view that M/s Avantha Realty Ltd. has not been substituted in place of the petitioner company. 19. Counsel appearing for the respondents have also challenged the maintainability of these contempt petitions on the ground of limitation. The contention raised by counsel for the respondents was that the petitioners have failed to file the contempt petitions within a period of one year from the date of the passing of the interim order dated 15.9.2006. This contention of counsel for the respondents is also devoid of any merit as the period of one year is not to be reckoned from the date of passing of interim order but from the date when the petitioners came to know about the act of contempt committed by the respondents. The petitioners have filed the petitions within one year from the date of execution of the Sale Deeds although in respect of one of the Sale Deed dated 9.11.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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