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TMI Blog2022 (11) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... o approach before NCLT in case of any difficulty in the implementation of the order. Keeping in view the equities, the facts and circumstances of the case and the background of the Company Law Board order, this instant Appeal is allowed with a direction to the National Company Law Tribunal, Chandigarh Bench, Chandigarh to take up the Applications i.e. CA No. 74 of 2021 CA No. 75 of 2021 filed by the Ld. Administrator and after hearing the parties, the Tribunal may pass appropriate orders taking into consideration the subsequent developments in the matter, at an early date. Appeal disposed off. - Company Appeal (AT) No. 40 of 2021 - - - Dated:- 23-11-2022 - [Justice Anant Bijay Singh] Member (Judicial) And [Ms. Shreesha Merla] Member (Technical) For the Appellant : Mr. Harshal Kumar, Mr. Apoorv Rastogi, Advocates For the Respondent : Mr. Krishnendu Datta, Sr. Advocate with Deep Dhamija, Advocate for R-1. Mr. Yash Saxena, Advocate for R-2. Mr. Hemant Phalpher, Advocate for R-3 JUDGMENT Justice Anant Bijay Singh ; The present Appeal under Section 421 of the Companies Act, 2013 filed by the Appellants being aggrieved and dissatisfied by the order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter of the Mr. Harmeet Ghai. The Appellant No. 2 is the widow of Shri Harmeet Ghai. The Appellant No. 2 and 3 have given special power of Attorney (SPA) to the Appellant No. 1 to pursue the present case. Mr. Harmeet Ghai the Late father of Appellants herein had purchased the Land totaling to 166 Bighas and 18 Biwas on 10.01.1986 and had paid the entire consideration amount of Rs. 9 Lakhs in lieu of which the owner had executed a GPA dated 15.01.1986 in favour of Late Mr. Harmeet Ghai for entire land and possession of entire land was delivered to Late Mr. Harmeet Ghai on 15.01.1986 itself. ii) The Respondent No. 2 Company was incorporated on 05.02.1986 as a private limited company. On 13.01.1987, Late Mr. Harmeet Ghai sold 55% undivided shares of the total land to Mr. Vinod Kumar Sharma by Registration of 12 Sale Deeds. In the year 1986, PWD acquired 5 Bhigas and 16 Biswas of land for construction of the village Road, however the final road was passed by the PWD in the year 1988. iii) Further case is that on 04.06.1987, Mr. Vinod Kumar Sharma executed an Agreement to sale for his 55% undivided share of total land to the Respondent No. 2 Company for total consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi) Thereafter, Takseem No. 182 of 2003 was carried out and the undivided land was partitioned according to the possession of the respective owners with the mutual consent of all the parties. Further the Jamabandi and Tatima (Revenue Records) were accordingly modified and necessary entries were made therein. Since 2003 till 2016, the Respondent No. 2 company had the clear marketable title of the partitioned land with exclusive possession of the Hotel Land, which was duly registered in the Revenue Records. Khatoni s and Jamabandi were also made separately. It is very clear from the records that the Respondent No. 2 is the owner and in possession of 92 Bighas and 8 Biswas of land i.e. 55% of the total land and remaining 45% of the Agriculture land equivalent to 75 Bighas and 10 Biswas belongs to other owners. vii) Further case is that in the year 2006, the Respondent No. 1 entered into an Agreement with Respondent No. 2 along with its Directors for purchase of 51% stakes in the Respondent No. 2 Company. After carrying out due diligence and being satisfied with the title in all respect of the property, the Respondent No. 1 simultaneously also entered into an Agreement dated 28.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Pradesh at Shimla for winding up of Respondent No. 2 company. Vide order dated 11.10.2012, Hon ble High Court passed status quo order with regard to assets of the Respondent No. 2 company. Further, by consent of the parties, the Hon ble CLB passed an order dated 31.01.2014 and appointed Hon ble Shri Justice Manmohan Sarin (former Chief Justice, J K High Court) as Administrator to clear the cloud, if any over title of assets to locate a buyer and to take steps for implementation of settlement dated 15.07.2009. Thereafter, Respondent No. 1 or the Administrator of Respondent No. 2 company appointed by CLB vide order dated 30.01.2014 filed several applications before Hon ble CLB inter-alia praying:- a) Publication in newspaper by made by inviting offers for sale of the assets of Respondent No. 2 company in accordance with the valuation of the assets submitted by M/s Haridicon Ltd., the valuer approved by the Government. b) A direction be issued for sale of land measuring 10 Bighas in order to meet day to day expenses of Respondent No. 2 company and fee payable to the administrator. c) Permission be granted to hold Annual General Meeting of Respondent No. 2 company in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Ld. Administrator has received a proposal from M/s G.R. Buildhomes Pvt. Ltd. who have offered to purchase and acquire the Shilon Bagh Resort for a consideration of Rs. 40 crores and have deposited with the Administrator a sum of Rs. 2 crores which are kept as FDRs, pending the consideration and decision by the Hon ble NCLT. Considering the numerous litigations against the company involving the Resort and the offer by the purchaser to purchase it on as-is-where-is basis, the Ld. Administrator recommended acceptance of the said proposal and simultaneously keeping the permission for running the F B Outlet in abeyance, pending the consideration and acceptance of the proposal for purchase of Resort and payment of the sale consideration. In view of the same the appeal is liable to be dismissed. 4. It is further submitted that the order dated 31.01.2014 passed by erstwhile CLB made it very clear that if the Administrator is unable to generate enough revenue from operation of the Respondent No. 2 company, he is to file an appropriate application before the CLB for appropriate orders. Instead of filing an application when he come to know about the purchaser the Ld. Administra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Administrator. The F B outlet will be functional anytime. The Ld. Administrator received a proposal from M/s G.R. Buildhomes Pvt. Ltd. who have offered to purchase and acquire the Shilon Bagh Resort on as-is-where-is basis for a consideration of Rs. 40 crores and have deposited with the Ld. Administrator a sum of Rs 2 crores which were kept as FDRs, pending the consideration and decision by the Tribunal. The Ld. Administrator recommended acceptance of the said proposal. The Ld. Administrator in para 8 of the written submission filed before this Tribunal has mentioned in detail about the G.R. Buildhomes offer and the action taken by the Ld. Administrator is that regard before the Tribunal. However, given the uncertainty of the time frame for the Tribunal to decide, in the meantime, the appeal be dismissed. 8. The Ld. Counsel for the Respondent No. 2 during the course of argument and in his with written submissions submitted that the conduct of the Directors of Respondent No. 2 i.e. Late Sh. H.S. Ghai and Respondent No.3 is/was detrimental to the interest of the Respondent No. 2 company because of the mismanagement of these two Directors namely Late Sh. H.S. Ghai and Mr. Um ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and NCLT. The conduct of the Ex-Directors has been enumerated in various status reports filed before the NCLT. 10. It is further submitted that the Respondent No. 3 had jointly filed the application being CA No. 781/2019 along with Respondent No. 1 which was decided vide order impugned dated 19.02.2021. However, curiously he appears to be opposing application moved by the Administrator forwarding and recommending for consideration M/s G R Buildhomes Pvt. Ltd. offer for purchase of the resort itself, which was the ultimate mandate given to the Administrator. Subsequent to passing of the order dated 19.02.2021 the Administrator has filed tow applications before the Tribunal being CA No. 74 of 2021 and CA No. 75 of 2021. The Administrator moved an application CA 74 of 2021 for modification of Clause 5 (a) of the order dated 31.01.2014 by seeking exemption and relaxation from the terms of the order dated 31.01.2014 requiring a tripartite agreement to be executed between Buyer-Purchaser on the one hand and M/s Umak Investment Co. Ltd., Sh. Umesh Phalpher and Sh. H.S. Ghai (now deceased), on the other. The Administrator sought relaxation to have the tripartite agreement executed, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the settlement have various reciprocal obligations which were not complied by the Respondent No. 1 company. In order to enforce the settlement dated 15.07.2009 by way of a joint application and by consent of all the parties, an Administrator was appointed by the Erstwhile CLB vide order dated 31.01.2014 (Annexure A-5 at page 89 to 90 of the Appeal) to enforce the terms of the settlement dated 15.07.2009. 13. It is further submitted that a joint application i.e. CA 781 of 2019 was filed by the Respondent No. 1 and 3 to permit the Respondent No. 1 to open a F B outlet at the property of Respondent No. 2 so that some day to day expenses for the company can be taken out. The aforesaid application was allowed vide order dated 19.02.2021 directing the Respondent No. 1 to commence the work. The License was allowed to be given for only one and a half years as permitted by the Administrator. Hence the permission expired on 18.08.2022 prior to the final hearing in the present Appeal. 14. It is further submitted that the Respondent No. 1 in its reply to the appeal also states at para 69 that the Administrator has received proposals for purchase of the assets of the Respondent No. 2 co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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