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TMI Blog2025 (1) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... n the schedule B of the respective sale deeds. The said common area and parking space etc. will go with an ownership right of the main property situated at different floors.
>Seeing the fact that some of the allotees have already claimed relief and obtained conditional order in their favor from Hon'ble High Court of Karnataka in Company Application no. 153/2020, 165/2020 & 253/2020 in Company Petition no. 162/2013, they may also file their claim applications before the Hon'ble High Court, as this Appellate Tribunal can not entertain their claim, as the said company is under liquidation. Hence, these two appeals need to be disposed of with liberty to the appellants.
>Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ncorde Retail Commercial) Area viz. Basement to IInd Floor) >76406 sq.ft. >United Breweries (Holdings) Ltd. >67.24 >175.73 >08 >Amount lying balance in bank A/c No.0164351000009300 held with Lakshmi Vilas Bank, Bangalore >….. >P.E. Date Centre Resources Pvt. Ltd. >34.21 (approx.)bank a/c balance hence present value as on 05.03.2016 has been taken) >34.21 >09. >Under construction flats in Kingfisher Tower, Bangalore to the extent of the remaining POC. >… >United Breweries (Holdings) Ltd. >398.04 (The value has been assessed on the basis of ready reckoner role, 2016) >398.04 > > >Total > >807.82 >1411.70 >2. As per the facts of the case a preliminary enquiry was conducted by CBI, BSFC, Mumbai against the officials of IDBI Bank Ltd., M/s Kingfisher Airline Ltd. and its officials on the allegations that the suspect officers of the IDBI Bank had sanctioned & d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the CMD's action in releasing the facilities would be sought of by the ED. Sh. Yogesh Aggarwal, the then CMD approved the proposal while instructing for expediting the ratings, though the memorandum mentions that auditors of the company had observed that funds aggregating to Rs. 4630 crores raised on the short-term loan basis were for long term proposed, undisputed TDS amount of crores of rupees was not deposited for over six months and the rating were not available. >The above limits were sanctioned and disbursed though the Original proposal for sanction of Corporate loan of Rs. 950 crore was pending. The said proposal was put up before the credit committee of IDBI bank on 19.11.2009 and the deficiencies existing in the previous sanctions were still existing. The Company M/s Kingfisher Airlines Ltd. was having poor financials, a negative net-worth and a rating of "BB". However, the sanctioning Authority had sanctioned the facilities by accepting the hypothecation/assignment of KFA brand, negative lien on the basis of hire purchase/finance lease aircraft, corporate guarantee of United Breweries Holdings Ltd. and personal guarantee of Dr. Vijay Mallya Chairman as Securities aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th loan aggregate rate of the borrower company and despite the fact that KAL being a new client did not satisfy the norms stipulated in the corporate loan policy of bank. >b. The officials of IDBI Bank limited, KAL (D-1) and its officials conspired among themselves and got sanctioned and disbursed term loan aggregating to Rs. 750 crore to KAL without conducting due diligence and KAL had diverted the said funds thereby putting the IDBI bank to a wrongful loss of Rs. 750 crore. >The FIR revealed that the following loan amounts were sanctioned and disbursed by the IDBI bank M/s KAL: >Sr.No. >Date of Application >Date of Sanction >Amount Sanctioned (Rs. in crore) >01 >01.10.2009 >07.10.2009 >150.00 (short term loan) >02 >04.11.2009 >04.11.2009 >200.00 (STL subsumed in the corporate loan of Rs. 750 crores) >03 >01.10.2009 >27.11.2009 >750.00 (Corporate loan) >d. That significant portion of the aforesaid funds sanctioned and disbursed by IDBI b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 01.10.2009 seeking a loan of Rs. 950 crore, an application letter dated 07.10.2009 seeking short term loan of Rs. 150 crore for 06 months period, an application letter dated 04.11.2009 seeking adhoc release of Rs. 200 crore pending processing sanction of Rs. 950 crore loan as applied; the application dated 07.10.2009, which was received for an amount of Rs. 150 crore was sanctioned, disbursed, fully recovered and account has been closed; that another application was received for Rs. 950 crore against which an amount of Rs. 750 crore was sanctioned (including subsuming of Rs. 200 crore); that she explained the process of sanction and disbursement of loans and the authority to sanction these loans; that M/s KAL defaulted on repayment; that post conversion under the restructuring package, the outstanding liabilities against M/s KAL was to the tune of Rs. 1342.06 crore as on 01.03.2016 (outstanding principal - Rs. 808.00 crore and Outstanding interest - Rs. 534.06 crore); that the collateral security for loan was personal guarantee of Shri Vijay Mallya, corporate guarantee given by M/s United Breweries Holdings Ltd. (UBHI) and Kingfisher Airline Brand value of Rs. 3400 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank, Union Bank, Laxmi Vilas Bank; that the outstanding loan amount is to the tune of Rs. 5600-5800 crore; that the last loan amount of Rs. 20 crore was received from Indian Overseas Bank somewhere in 2012 and thereafter, no loan amount was received from the banks; that the loan application was prepared by the Corporate Finance of UB Group and routed through M/s Kingfisher Airlines ltd; that the total request made for the loan from IDBI Bank was to the tune of Rs. 950 crore, initially an amount of Rs. 150 crore was sanctioned as a short-term loan (STL) and pending the sanction of the remaining Rs. 750 crore an ad hoc release of Rs. 200 crore was requested; that this has happened consequent to meeting of Shri Vijay Mallya with Shri Yogesh Aggarwal, CMD of IDBI Bank ltd; that accordingly, he had submitted a request letter for adhoc release of Rs. 200 crore was released; that thereafter Rs. 750 crore was sanctioned and disbursed; that immediately after disbursal of Rs. 750 crore, an adhoc amount of Rs. 200 crore was repaid to IDBI Bank; that the amount of Rs. 150 crore was also repaid on the due date along with interest; that as on date the outstanding amount towards IDBI Bank Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at UB City, UB Tower, 24 Vittal Mallya Road, Bangalore; that the Income Tax Department is investigating a case for not depositing of TDS amount deducted from the employees salaries and other expenses and the Services Tax Department is investigating a case for non-deposit of Service Tax amount which has been collected from the passengers travelling in M/s KAL; that the I.T. department has claimed an amount of Rs. 370 crore (approx.) out of which we have paid amount of Rs. 140 crore (approx.); that regarding Service Tax collected and not paid, is to the extent of Rs. 50 crore (approx.); that the CBI-BS&FC is also investigating the non-payment of loan disbursed by IDBI Bank Ltd. and the SHO is also conducting investigation against them; that he was aware of the Earnest & Young Report, which is a Forensic Audit initiated by State Bank of India on behalf of the consortium banks. >In his further statement dated 12.03.2016, he inter-alia, stated that, he was staying at the mentioned place in Mumbai from August, 1993 and the said flat is owned by UB Group; that he was not aware as to which company of the UB Group is holding the said property; that the said flat had been purchased in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Operators permit as they are covered under NSOP (Non Scheduled Operators Permit); that there were 68 aircrafts lease agreements (approx.) entered by M/s KAL. However, he does not have the copies of the agreements as the same were submitted to SFIO and their copies were taken away by CBI during their search operation conducted in October, 2015; that most of lease agreements entered by M/s KAL was much before he joined M/s KAL viz. in January, 2006; that the price variation might be to the extent of 5% - 10% mainly due to the variation & specification of the LOPA (Lay Out Plan of Aircraft) and other fittings; that M/s Calyon Bank, France, a specialist in aviation leasing was appointed by M/s KAL to assist in finalizing the lease transactions of aircraft for M/s KAL. In additional, the Chief Operating Officer at the relevant periods namely Shri Alex Wilcox initially and then Shri Nigel Harwood were incharge of finalizing the lease agreements. The COO's were assisted by the Damania Brothers viz/ Pervez & Vispi Damania; that after the exit of Shri Nigel Harwood & Damania Brothers, Shri Hitesh Patel was entrusted the responsibility of lease agreements with inputs from M/s Calyon Bank; th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority for confirmation of the said attached property. Being satisfied with the allegation mentioned in the Original Complaint the Adjudicating Authority after forming reasonable belief issued the Show Cause Notice to the defendants. >After receiving the replies on behalf of the said defendants and the rejoinders filed by ED and hearing the arguments, the Adjudicating Authority passed the detailed order dated 01.12.2016 confirming the PAO No. 11/2016 aggrieved by the said order, appellants filed the present appeals. >3. Ld. Counsel for the appellant M/s. United Spirits Ltd. in appeal no. FPA-PMLA-2524/MUM/2018 submitted that the appellant company was engaged in business of manufacture and sale of alcoholic beverages and was part of the UB Group. This company was acquired by DIAGEO Group in 2013. Before acquisition, this company purchased 6th and 7th Floors of UB Tower, measuring 15551.8 sq. ft. of super built area along with the proportionate share in the common areas vide sale deed dated 06.10.2010. He pointed out that appellant company also purchased 8th and 9th Floors of UB Tower measuring 15551.8 sq. ft. of super built area along with the proportionate share in the common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attachment of common spaces & parking, lifts, lobby and staircase. He pointed out that sale deed date 28.06.2008 executed by United Breweries (Holdings) Ltd. in favour of United Breweries Ltd. for selling properties of Schedule C measuring 23808.25 sq. ft. situated on Floors III, IV & V, along with proportionate share in all the common areas such as passages, lobbies, lifts, staircases and other areas of common use with 57 car parking spaces in the building for a sum of Rs. 35 Crores, as mentioned at page 6 & 15 of the said sale deed. He argued that appellant company would be put to grave and irreparable prejudice for attaching the common spaces and car parking spaces, without appreciating the fact that the units in the UB Tower were purchased along with these common amenities. The appellants have right to use their respective car parking slots and access through 1st & 2nd Floor of common area including reception for reaching to their respective places. Any confiscation and any alienation of the common area would cause grave harm to the occupants of UB Tower. Appellants have right of easement and passage to their respective offices and hence the said common spaces cannot be confis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out that till date he has tendered some of rupees 19.5 crores, but no sale deed is executed in his favor as the company went into liquidation before execution of sale deed and handing over of the possession. The remaining payment was agreed to be paid as per payment schedule, which are at page 279 & 299 of the appeal paper book. He pointed out that appellant is neither accused in CBI case, nor in prosecution complaint filed by respondent ED. There is no direct or indirect evidence against the appellant for commission of any crime. He is a Bonafide purchaser of aforesaid flat. He pointed out that many unit purchasers have filed their respective claims by way of Company Applications for specific performance vide CA No. 153,165 & 253/2020 before Hon'ble High Court of Karnataka, against the vendor company M/s United Breweries (Holdings) Ltd. through Official Liquidator, as the said company was under liquidation and the said cases were decided in favor of the said applicants vide order dated 22.12.2020, 18.02.2021 & 18.02.2021 respectively, vide which Hon'ble High Court directed the Official Liquidator to register the sale deeds of the subject apartments in their favor, subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in above sub para. >8. After hearing the rival submissions, we have given our thoughtful consideration for the same. Perusal of records reveals that: - >Appellant M/s United Spirits Ltd. filed 3 sale deeds annexure A2 to A4 dated 06.10.2010, 01.03.2011 & 30.06.2011 which are at page number 241-262, 263-284 & 285-302 respectively in folder no. 3 of the said appeal paper book. Annexure A2 reveals that sale deed dated 06.10.2010 was executed between M/s United Breweries Holdings Ltd. in favor of M/s United Spirits Ltd. vide which the Board of Directors of seller companies in board meeting dated 21.07.2010 have approved the sale of the schedule C property together with schedule B property in favor of the purchaser for sale consideration of Rs. 19,62,21,840/-. The schedule B reflects undivided share to the extent of 4707.13 sq. ft. with right, title, interest & ownership in schedule A property measuring 6.99 acres. The schedule C reflects office space being the 6th and 7th floor measuring 15,551.82 sq. ft. of super builtup area, which is inclusive of proportionate share in all the common areas such as passages, lobbies, lifts, staircases & other areas of common use in the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their favor till date. Even possession of the respective units is not handed over to them. There is nothing on record to show whether they were part and parcel of any conspiracy with the accused company and the other accused persons for obtaining any amount directly or indirectly from the proceeds of crime or the said agreement to sell in their favor are false and fabricated documents, without part payment of sale consideration amount. However, seeing the fact that some of the allotees have already claimed relief and obtained conditional order in their favor from Hon'ble High Court of Karnataka in Company Application no. 153/2020, 165/2020 & 253/2020 in Company Petition no. 162/2013, they may also file their claim applications before the Hon'ble High Court, as this Appellate Tribunal can not entertain their claim, as the said company is under liquidation. Hence, these two appeals need to be disposed of with liberty to the appellants as above. >10. In sequel to our findings, the appeals at serial no. 1 & 2 are hereby allowed and appeals at serial no. 3 & 4 are hereby disposed of with liberty to file claim petitions before Hon'ble High Court of Karnataka in Company Petition no. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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