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TMI Blog2024 (8) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the Official Liquidator to make payment of compensation of Rs. 5 lacs per month since the date of possession of the property in question. 2. Briefly stated, it is the case of the applicant that it had purchased the property in question for a valuable consideration of Rs. 1,35,00,000/- from M/s. Jasai Exports Private Limited through its Managing Director - Mrs. Guljit SP Singh, by way of a registered Sale Deed dated 14.03.2005. Further, it is stated that the company (in liquidation) - Data Access (India) Ltd. (hereinafter referred to as 'DAIL') was a tenant of the erstwhile owner, from whom the applicant purchased the property in question. The lease deed (titled as a "License Deed") entered into between original owner of the property in question and the company (in liquidation) is dated 02.06.1999 (Annexure A-2 in CO.APPL. 3176/2016) and extends for a maximum term of 9 years. A perusal of the same suggests that the company (in liquidation) was granted permission to use the basement and first floor of the factory premises to carry out its business activities. 3. A company petition seeking winding up was instituted against DAIL and vide order dated 26.10.2004, a Provisional Liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him using the funds he diverted from the company (in liquidation). It is urged that this is an attempt to take possession of the property which has been purchased using the funds of the company sought to be wound up. ANALYSIS & DECISION: 7. I have given my thought consideration to the contentions raised by the rival parties and have also meticulously perused the record of the present applications as also these winding up proceedings. 8. First things first, it would be apposite to consider the observations made by this Court during the course of hearings accorded in the present petition for winding up, specifically the observations that pertain to the diversion of funds by the Ex-Management as also the fraud played upon the Canara Bank, being the secured creditor of the company (in liquidation) vide order dated 18.11.2005, which read as under: "63. Admitted facts are that since the bank/consortium had to receive substantial amount, on 9th July, 2004, the company sent a letter to the bank informing that it was arranging a sum of Rs.75 crores to Rs.125 crores from an investor in order to augment the working capital and improve the cash flow. Thereafter, vide letter dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borrowed the money from the said parties for making payment to the company. (c) Although it is alleged that the money was to be given by way of loan by CHPL/Odyssey with certain conditions, even when this money was received on 18th August, 2004, the correspondence on record which is highlighted by the bank shows that much after this date also there were discussions about the investors infusing Rs.75 crores indicating that such a money has yet to come. (d) This can be inferred from the shareholder's agreement dated 26th August, 2004, consortium meeting dated 7th September, 2004 and follow up letters dated 16th, 17th and 21st September, 2004 received by the bank. Even in reply dated 19th November, 2004 counsel for company M/s Dua Associates did not refute the allegation of the bank that money was received from Data Access America Inc.in the account of the company. (e) Although as per the representations made, investors were to infuse Rs.75 crores, money received is US $ 17 million i.e. Rs.78.45 crores. (f) After receiving the amount, the ABN AMRO filed inward remittance certificate with RBI on 19th August, 2004 i.e. the same date declaring that the remittance was receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n subsidy Data Access America ('DAA') on 19.08.2004 in an account opened with ABN AMRO Bank, which was done without informing the bank. Thereafter, the Ex-Management of the company (in liquidation) diverted the funds received from its foreign subsidy, to its sister concern namely, M/s. Cheran Holding Pvt. Ltd. (CHPL), which was further diverted by the Ex-Management to four other sister concerns, the relevant details of which are as under: a. On 19.08.2004 i.e., on the same day, transferred Rs.35,30,46,482/ to the account of M/s Cheran Enterprises Pvt. Ltd (CEPL). b. On 19.08.2004 i.e., again on the same day, transferred 18,05,00,000/- to the account of M/s KCP Associates Holdings (KCPAH). c. On 28.10.2004 i.e., again on the same day, transferred Rs. 25,00,000/- to Sporting pastime India Ltd. d. Out of the amount transferred to KCPAH the management of the Respondent Company transferred Rs.18.03 Crores to Syndicate Bank on 20.08.2004. 10. It has been submitted on behalf of Canara Bank that the entire amount of Rs. 78.45 crores, which was illegally diverted, along with due interest, has not been repaid. It is pertinent to mention that the order dated 18.11.2005 was challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the same has been placed on the record by the respondent/Canara Bank. Evidently, it is not a registered document either. 13. Further, learned counsel for the respondent/Canara Bank has pointed out that the name of the applicant company has since been struck off from the Register of Companies by the Ministry of Corporate Affairs as per the copy of the Master Data placed on the record as on 14.12.2023 at 12:05:05 p.m. Although, learned counsel for the applicant vehemently urged that an application has already been moved for revival of the company on 01.04.2024, the said fact was not disclosed while moving the present application. The authority of Mr. Piyush Kumar, who has filed the application as Authorized Representative of the Board has not been explained. No resolution of the Board of Directors has been placed on the record. Apparently, the sale deed dated 14.03.2005 has been executed after appointment of Provisional Liquidator by this Court vide order dated 26.10.2024. 14. As pointed out by the learned counsel for Canara Bank, a perusal of the Master Data from the Ministry of Corporate Affairs as on 14.12.2023 would show that the registered address of the applicant company i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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