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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 ..... els and Resorts Limited represented by its Administrator and after hearing the parties, the Tribunal disposed of the CA No. 781/2019 and passed the following orders: "13. In the circumstances and for the aforesaid reasons, the instant CA No. 781/2019 is disposed of as under:- i) The first applicant shall be permitted to operate, run and maintain the F&B outlet at the resort of the respondent No. 1-UG Hotels and Resorts Limited, in terms of the Annexure A site plan filed vide Diary No. 00872/4 dated 18.11.2020 to generate revenue and to meet the day to day expenses. ii) All the expenditure to uplift the face of the resort and to make all the necessary repairs and all sorts of miscellaneous expenditure thereon and to run the F&B outlet shall be borne by the applicant itself in the first instance under the supervision and guidance and approval of the Administrator and the same can be recovered from the income generated from running the F&B outlet and the sale proceeds of the resort, in addition to the amounts payable to it, under the orders of the Company Law Board. iii) The applicant shall handover the peaceful vacant possession of the resort to the Administrator/to the buyer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Mr. Vinod Kumar Sharma, accordingly the Respondent No. 2 agreed to pay the consideration of Rs. 10 Lakhs by way of allotment of equity shares to Mr. Vinod Kumar Sharma and also gave an offer to become Director of Respondent No. 2 company. iv) Thereafter, Mr. Vinod Kumar Sharma executed a GPA in favour of the Late Mr. Harmeet Ghai for his undivided 55% shares equivalent to 90 Bighas only and registered the same on 30.11.1989 wherein he had categorically mentioned that he is the owner and in possession of 555 shares of total land measuring 164.10 Bighas equivalent to 95 Bighas 8 Biswas (wrongly calculated). After execution of Agreement to sell/purchase of Land from Mr. Vinod Kumar Sharma the Respondent No. 2 company on 06.06.1987 applied under Himanchal Pradesh tenancy and Land Reforms Act, 1972 for Land measuring 95 Bigha 8 Biswas only. The State Government accorded its approval under Section 118 of the Act, 1972 for construction of the Hotel vide its order dated 03.05.1990 only for 95 Bigha 8 Biswas and balance undivided 45% share in the land remained with Late Mr. Harmeet Ghai. Thereafter, Sale Deed in favour of Respondent No. 2 company was executed and registered on 31.05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land for 70 Bighas was mentioned. Further the Kothi is also part of the said 75 Bighas of land. viii) The Respondent No. 1 had advanced loans to the tune of Rs. 15.40 crores to the Respondent No. 2, 3 and Appellant herein towards purchase of 51% equity. Thereafter, in the year 2007, certain disputes arose between the Respondent No. 1 and Respondent No. 2 company and its Directors. The Respondent No. 1 had filed Company Petition No. 06 (ND)/2009 under Section 397/398 of the Companies Act, 1956 before the erstwhile Hon'ble CLB, Principle Bench, New Delhi alleging various acts of oppression and mismanagement in U.G. Hotels & Resorts Ltd., Respondent No. 2, 3 and Mr. Harmeet Ghai. Thereafter, on 15.07.2009, settlement agreement (Annexure A-4 "Colly" at page 84 to 88 of the Appeal) was executed between the parties. As per the settlement agreement parties had reciprocal obligation and in performance of the obligation of Respondent No. 2, a sum of Rs. 50 Lakhs was paid back to the Respondent No. 1 company and petition was withdrawn by order dated 20.07.2009. ix) Further case is that in para 4 & 5 of the terms of settlement, the amount Rs. 16.05 crores to be paid to the Respondent No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that "In view of the above CA No. 132/C.1/2015 and 133/C.1/2015 are disposed of at this stage with liberty to the petitioner to file fresh one after the status quo order is vacated by High Court of Himachal Pradesh and if such necessity is felt by the applicant". Thereafter, the Hon'ble High Court of Himachal Pradesh vide order dated 29.05.2018 modified the order dated 11.10.2012 to the extent that that Ld. Administrator shall take all the steps pursuant to order dated 31.01.2014 passed by the Hon'ble CLB for evaluation and sale of the property in question, but sale proceeds, if any, received shall not be disbursed to the creditors without the leave of the Court. xii) Further case is that on 24.09.2019, CA 781/2019 was jointly filed by Respondent No. 1 and Respondent No. 3 for modification of the order dated 31.01.2014 passed by Hon'ble CLB. The Respondent No. 2 company through the Ld. Administrator also filed an affidavit along with a proposal to run a F & B outlet and supported the application of Respondent No. 1 and 3 herein. After hearing the parties impugned order was passed. Hence this Appeal. Submissions on behalf of the Appellant 3. The Ld. Counsel for the Appellant duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Respondent No. 1 company. The Respondent No. 1 never acted on the impugned order for the period of 16 month and when the matter was listed for final hearing on 30.09.2022 before the NCLT, the Respondent No. 1 started putting money in the property of Respondent No. 2 company just to keep the property in their own custody. Further, the late father of the Appellant has brought several purchasers to purchase the property of the Respondent No. 2 company but the Respondent No. 1 company in hand in gloves with the Ld. Administrator did not allow any of them to purchases to the same. Based on these submissions the impugned order is fit to be set aside and the Appeal be allowed. Submissions on behalf of the Respondents 6. The Ld. Sr. Counsel for the Respondent No. 1 during the course of argument and in his reply affidavit along with written submissions submitted that the impugned order dated 19.02.2021 was passed in accordance with the letter and spirit of the order dated 31.01.2014 and settlement agreement dated 15.07.2009, wherein permission has been granted, subject to conditions mentioned in para 13 of the order impugned to Respondent No. 1 herein to operate, run and maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and Appellants are now desirous of somehow extracting whatever they can, to the detriment of the public shareholders. As per the mandate of the Hon'ble CLB now NCLT, the sale proceeds are to be disbursed as per its direction and supervision and after due permission from the NCLT and the High Court of Himachal Pradesh. 9. It is further submitted that Sh. H.S. Ghai, himself proposed and accepted the appointment of the Administrator, did a volte face and began creating hindrances right from the beginning in the smooth functioning of the Administrator's office and putting obstacles in accomplishing the mandate given to him, by the CLB vide order dated 31.01.2014. Sh. H.S. Ghai and Respondent No. 3 failed to locate a buyer for the property due to numerous encumbrances and hindrances created by Late Sh. H.S. Ghai. It is further submitted that the endeavour of the Administrator has always been to give effect to the settlement dated 15.07.2009 and accordingly, Administrator has been performing his duties to the best of his abilities in spite of the fact, that the deceased former Director Sh. H.S. Ghai and now his son/ Appellant No. 1 and associates have been creating hindrances and obst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uildhomes is ready to purchase the assets of the company on "as is where is basis", together with knowledge of all litigations and encumbrances attached to the property. The said proposal after due scrutiny found worthwhile and M/s G.R. Buildhomes Pvt. Ltd. deposited a sum of Rs 2 crores with the Administrator and accordingly CA 75 of 2021 was filed to accept the proposal made by M/s G.R. Buildhomes Pvt. Ltd. for the purchase of Resort subject to any further or additional terms and conditions which the Tribunal in its wisdom and discretion may consider proper and desirable. Further, the Respondent No. 3 filed his reply/objections to the said two CA's, the Respondent No. 3 has made reckless allegations against the Administrator in the reply/objections. The Administrator submits that in view of the acts and omission having been brought on record of NCLT or the former Director as well as what appears to be a sinister attempt to grab and extract whatever he can from the prospective purchaser as a condition for not opposing and/or consenting for the contemplated tripartite agreement. The Respondent No. 3 has been changing colours more than a chameleon, depending upon his perceived finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order for a period of 16 months, it is only when multiple offers were received for the purchase the assets of the Respondent No. 2 company, the Respondent No. 1 company started renovating the F&B restaurant in terms of the impugned order as late as on July 2022 after a period of 16 months from the date of the impugned order only to increase the liability and erode the net worth of the Respondent No. 2 company. 15. It is further submitted that the Respondent No. 3 has already withdrawn his consent from giving any permission given to Respondent No. 1 for running F&B outlet and on the basis of the same the impugned order deserves to be set aside and the instant Appeal be allowed or in alternative in terms of paragraph 13(vi) of the impugned order, the parties to approach the NCLT. The paragraph 13(vi) of the impugned order is hereunder: "13(vi) The parties are at liberty to approach this Tribunal, in case of any clarification or any difficulty either in the implementation or interpretation of this order." 16. After hearing the parties and going through the pleadings made on behalf of the parties and the impugned order dated 19.02.2021, we are of the considered view that averme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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