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TMI Blog2025 (2) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... oti Taneja, Advs. for R-11. ORDER CM APPL. 10599/2024 & 11516/2024 1. This order shall decide CM APPL. 10599/2024, moved by the applicant/respondent No. 7, Mr. Vidur Bhardwaj, and CM APPL. 11516/2024, moved jointly by applicant/respondent No. 12, Mr. Pratap Singh Rathi, and applicant/respondent No. 13, Mr. Ajay Kumar, for the ACE Group of Companies, seeking the recall of the impugned interim order dated 02.02.2024, passed by this Court on the CM APPL. 6519/2024, moved on behalf of the petitioner in the instant writ proceedings. 2. Shorn of unnecessary details, the petitioner, who is a homebuyer, claims to have purchased a plot from respondent No. 3, M/s. Three C Shelters Private Limited ["TCSPL"], in a real estate project named 'Greenopolis', which was envisioned to be developed in Sector 89, Gurugram, Haryana. Allegations were made against respondent No. 3/TCSPL and its Ex-promoters/directors/ management, who are arrayed as respondents No. 6, Mr. Nirmal Singh; respondent No. 7, Mr. Vidur Bhardwaj; respondent No. 8, Mr. Surpreet Suri; respondent No. 9, Mr. Rajeev Bisoya; and respondent No. 10, Mr. Girish Chander Joshi - along with others, accusing them of allegedly siphoning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 09.08.2023, which is 'Annexure P-16', and it would be pertinent to reproduce the relevant paragraphs of the aforesaid impugned order, which read as follows: "10. It is pertinent to mention that learned Senior counsel alluded to the damning findings and observations reported by the IRP before the NCLT, which report is Annexure P-16 wherein vide paragraph (31) onwards it has been brought to the fore that during the time leading to respondent No. 3 becoming involved in the insolvency proceedings up to 16.10.2020 and thereafter, various dubious/suspicious transactions had been carried from the bank account of the corporate debtors maintained with State Bank of India, whereby inter alia a sum of Rs. 200 crores have been transferred by way of multiple transactions on the very same day from one company to the another ostensibly to buy shares of some Kolkata based shell companies in the name of the corporate debtor and the money trail led to the following revelations:- "31. (a)A Sum of Rs. 4,50,00,000/- was transferred from the Account of the Corporate Debtor to M/s Manak Estates and Finance Private Limited, and thereafter shares of a Kolkata based company namely GREATFUL INFRASTRUCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also a director in one more Three C Group company i.e. Three C City Developers Pvt Ltd. from December, 2019 till date. 7.2. It is respectfully submitted that even Bright Buildtech Pvt. Ltd. and the Ace Group have been working in close relation, and the management of both the companies are inter-related to each other. As elaborated in Para 6.2. herein above- M/s Bright Buildtech Pvt. Ltd. is 100% owned by M/s Three C Town Planners Pvt Ltd. ↓ In 2012, 100% shareholding of Three C Town Planners Pvt Ltd was held by M/s Three C Universal developers Pvt Ltd. From 2012-2015 funds were siphoned off from the Corporate Debtor to M/s Bright Buildtech Pvt Ltd ↓ 100% shares of M/s Three C Town Planners Pvt Ltd. were transferred to Lotus Green LLP at merely Rs. 1 Lakhs (M/s Lotus Green LLP is held by Mr. Harakaran Singh Uppal son of Mr. Nirmal singh) ↓ 100% shareholding of M/s Three C Town Planners Pvt Ltd (renamed as M/s Mega Town Planners Pvt Ltd.) was reported to be transferred to M/s Ace Landcraft LLP at a consideration of merely Rs. 1 lakhs. 7.2. It is respectfully submitted that the undersigned has identified that funds from the Corporate Debtor have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that, despite these aforesaid damning facts being brought to the notice of respondents No. 1 and 2, they had failed to discharge their duties in terms of Chapter XIV of the Companies Act, 2013, and the following directions were passed to safeguard the interest of the petitioner, as well as other similarly placed investors/claimants/homebuyers: "20. Accordingly, following interim directions are passed:- (i) Respondent Nos. 1 and 2, are hereby conjointly directed to initiate action and ensure step-wise compliance in terms of Section 206 to 210 of the Companies Act, 2013 and other analogous provisions in Chapter XIV of the Companies Act, 2013, and thereby inspect the affairs of 'Three C Shelters' and the related companies of 'Three C Shelters' in terms of the Status Reports of the IRP before the NCLT as brought out in his reports dated 9th August, 2023 and submit an Inspection Report within four weeks from today before this Court; (ii) Initiate appropriate legal action against respondent Nos. 6,7 and 8 thereby calling upon them to explain the diversion of funds from respondent No. 3 i.e., Three C Shelters Private Limited to other shell companies/sister concerns of its group i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o reclaim or repossess certain properties belonging to them, which have no nexus or connection with the respondent No. 3/TCSPL. It is pertinent to mention that LPA bearing No. 134/2024 was filed by the applicants which was disposed of vide order dated 19.02.2024 by the Division Bench headed by the then Hon'ble Acting Chief Justice. It was directed that a recall/modification application may be moved before this Court within three working days, which be decided as expeditiously as possibly preferably within three weeks. 10. Accordingly, the present application was moved on 21.02.2024, and marathon arguments have been heard on different dates. Suffice to state that the applicants, in their application, claim that ACE Group is a renowned Real Estate Developer in Delhi and the NCR [National Capital Region], promoted by the applicants/respondents No. 12 and 13, and that the impugned order has wrongly portrayed it as a proxy of respondent No. 3/TCSPL. It is further stated that penal provisions under the Companies Act, 2013, appear to have been set in motion against the ACE Group of Companies without impleading them or issuing notice. The objections which have been raised so as to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit Petition, it could be seen that petitioner is in default of its payment obligations of agreed consideration under ABA. As of today, she has only paid 23.25 lakhs (approx.) out of the agreed total consideration of Rs. 87.16 lakhs payable in respect of the apartment in question. It is submitted that a person who is admittedly in default of material obligations under the ABA, cannot invoke the extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. 17. The Writ Petition is clearly neither a class action nor a Public Interest Litigation (PIL). From the documents and records, it can be clearly seen that the present writ petition is collusive proceeding at the behest of Orris. The present writ Petition has been filed clearly with an attempt to embroil the assets and properties of companies which otherwise have no financial transactions with Three C Shelters. 18. From the pleadings and documents filed with Writ Petitions, the following undisputed facts may be noted: (i) NCLT, Principal Bench New Delhi vide an order dated 29-03-2022, (Annexure P-11 to Writ Petition) held that Orris is the licensee and developer/owner of Greenopolis Project a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loors in Gurugram, Haryana. In addition, there are many projects which are under construction and development. The Ace Group has completed and delivered 10000 (Ten Thousand) residential apartments to satisfied and happy home buyers. Ace Group has also developed some iconic commercial and IT/ITES projects like City Square, Ace Studio and Ace Capitol in Noida /Greater Noida. Ace Group has a significant presence in Northern India. That the Ace Group has some of the biggest real estate developers in the country as its partner like Godrej Properties and Prestige Group Bengaluru. Ace Group has been setting benchmarks by creating homes, commercial and institutional spaces and is today a multi thousand crores conglomerate, delivering futurecentric and high-end projects. The Petitioner or Ace Group have no connection whatsoever with Three C Shelters or Three C Group much less being a proxy. It is submitted that labeling of Ace Group as a proxy of Three C Shelters is plainly bogus, malicious and defamatory. 12. It is averred that the NCLT, Principal Bench, New Delhi, vide order dated 29.03.2022 in CP IB 2721/ND/2019, held respondent No. 11/Orris as a 'Licensee' and the developer/owner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court. 15. It is vehemently urged by the learned counsels for the applicants/respondents No. 12 and 13 that the investigation under Chapter XIV of the Companies Act, 2013, has been ordered against ACE Group of Companies in complete violation of the principles of natural justice. It is further contended that the petitioner, without exhausting the remedies available to her under the IBC, has indulged in forum shopping and has failed to satisfy the pre-requisite for filing a 'Public Interest Litigation' in complete violation of the Delhi High Court (Public Interest Litigation Rules), 2010. It has been argued that the petitioner has approached this Court without first availing efficacious and alternative remedies, as Chapter XIV of the Companies Act, 2013, clearly provides such recourse. 16. During the course of arguments, it was contended that the petitioner allegedly sent an email dated 28.01.2024, seeking an inquiry/investigation into the affairs of respondent No. 3/TCSPL, purportedly on behalf of one Mr. Nitish Badola, concerning his grievance related to an order dated 09.01.2024, passed in an unrelated W.P.(C) 172/2024, in which the petitioner is not even a party. Both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors of respondent No. 3/TCSPL viz., share purchase agreement dated 12.12.2012 executed between M/s. Three C Universal Developers Private Limited ["TCUDPL"] and Surpreet Singh Suri being sellers and described as first part in favour of Pradeep Jain S/o Sheel Kumar Jain; Bhupinder Singh Kochar S/o Suchet Singh Kochar; Ajay Khetrapal S/o Basant Kumar Khetrapal; Anand Goel S/o Bishan Dayan Goel; Munish Kher S/o Ram Saran Kher; Meenu Kher D/o Chaman Lal; Prashant Aggarwal S/o Prakash Chand Aggarwal; Pooja Aggarwal W/o Prashant Aggarwal, described as buyers and M/s. Sequel Building Concepts Private Limited ["SBCPL"], which agreement pertained to sale of 1000 number of shares in TCUDPL for a total sum of Rs. 1,00,000/- by the second party described above, which purportedly belonged to the Ashiana Group. 20. Likewise, reference is made to the share purchase agreement dated 31.12.2013, executed between M/s. Pinnacle Superstructures Private Limited ["PSPL"] and Deepak Khurana, described as the first party (seller), for the sale of 1000 shares to Mr. Dhanesh Chand Agarwal S/o Devi Sahai; Dhanesh Chand Agarwal & Son (HUF); Ms. Aparna Aggarwal R/o Ravindra Mittal; Mahesh Chand Goyal (HU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SPONDENTS NO. 4 & 11 23. The application for recall has been vehemently challenged by respondent No. 4/Greenopolis Welfare Confederation, as well as respondent No. 11/Orris. Mr. Maninder Singh, learned Senior Advocate appearing for the respondent No. 11/Orris, took the lead and addressed arguments in opposition to the pleas advanced by the learned Senior Advocates for the applicants/respondents No. 12 and 13. It was pointed out that the total area of the project, which was to be developed, was 47.21 acres, of which they were the owners, and construction was supposed to be carried out on an area of 37.09 acres. A development agreement was executed between the respondent No. 3/TCSPL and respondent No. 11/Orris on 02.11.2012, which was valid upto 22.12.2019, and the project i.e. 'Greenopolis' was initiated in July 2012, with the booking of flats starting in 2012-2013, while the due date for completion of construction was set for December 2015. 24. The learned Senior Advocate for the respondent No. 11/Orris argued that the project envisaged the construction of 1,862 apartments across 29 towers on an area of 37.09 acres. Additionally, 9 more towers were to be constructed upon 10 acres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a project, they collected money, diverted it to different other companies and then resigned from directorship of the company, and push the company into insolvency and get over with all civil or criminal liabilities. Surprisingly, even after conning everyone they have been going scot free, neither the State nor the authorities are in a position to recover the said amount." 27. On the same analogy, it was pointed out that respondent No. 11/Orris was to deliver 652 flats by developer/respondent No. 3/TCSPL and instead it was saddled with the plight of 1210 buyers. Learned Senior Advocate took this Court through certain other scathing observations by the learned Judges of the Division Bench of the Allahabad High Court, as reflected in paragraph (89) to (92) and conclusions, which are as under: "89. In this backdrop, the ration of case law cited by petitioner in the case of R.K. Chaddha Vs. State of U.P. (supra) is not applicable in the present case. As in the instant matter the promoters/directors had got land allotted from Noida Authority launched project and lured people to invest/book and then sold off a major portion of the land to the third party for Rs. 236 crores and then ski ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court in Arbitration and Conciliation Application No. 39 of 2018, wherein, Anand Ram, the present director, in a Court proceeding has given a statement that he is just a store keeper with HPPL and has no knowledge about the working of the company and he had appeared on the direction of (Personal Secretary of one of the promoters, Vidur Bharadwaj), it was then the Court had issued summons to one of the directors/petitioners (who had resigned) to appear before the Court. This goes to show that the petitioner and the other directors are in complete control of the company throughout, and the present directors are their petty employees placed by them as puppets. x x x x x x 114. Since the offence committed by the petitioners/promoters is a scheduled offence under the PMLA Act. The Enforcement Directorate is directed to proceed against all the directors/promoters/designated promoter/officer who is in default, companies/other entities in which money from HPPL is syphoned or parked. These entities/people are directed to cooperate in the investigation and if they do not cooperate in the investigation then Enforcement Directorate would be free to take any appropriate action agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings held on 9.8.2019, an affidavit has been filed on behalf of the petitioner. The affiant is, one, Mr. Supreet Singh Suri. 2. Mr. Supreet Singh Suri claims to be the Director and the authorised representative of the petitioner company. A perusal of the affidavit shows that the petitioner company has agreed to the offer made by respondent No. 1 and 2 on 9.8.2019 to settle the dispute obtaining amongst them. 3. I may also indicate that in paragraph 6 of the very same affidavit it has been averred that the sum of Rs. 65.50 crores was sourced by the petitioner company via its sister concern for two specific projects i.e. Greenopolis Welfare Association and Lotus Green Projects LLP (collectively referred to as "Projects"). 4. According to the petitioner company, the money was obtained from Three C Infra Private Limited and Hacienda Projects Private Limited. It is averred that the principal amounts received from Three C Shelter Private Limited and Hacienda Projects Private Limited was Rs. 47.50 crores and Rs.18 crores respectively. 5. It is, therefore, the stand of the petitioner company before me that the principal sum of Rs. 65.50 crores alongwith simple interest at the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 crores alongwith simple interest at the rate of 2 per cent per annum, commencing from 21.8.2018 till 20.8.2019. (i) (a) In case any withholding tax is required to be deposited, the Registry will make suitable adjustments. (i)(b) The counsel for respondents No. 1 and 2 will revert with this aspect of the matter within the next three (3) days. This information will be given to the Joint Registrar (Judicial) by way of an affidavit. (ii) After the money is released to the petitioner company as quantified in terms of the directions issued hereinabove, the remaining amount shall be released to respondent No. 1. (iii) With the release of money to the petitioner company, the liabilities of respondent No. 1 and 2 towards the petitioner company will come to an end. (iv) Furthermore, the director of the petitioner company i.e. Mr. Supreet Singh Suri, who is present in Court will file an undertaking by way of an affidavit, indicating therein that the money as directed by me hereinabove will be kept in an interest bearing escrow account for a period of four (4) weeks from the date of receipt of the money from the Registry. 14. List the matter before the Joint Registrar (Judicial) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such as BBPL, TCRPL, and TCCDPL were acquired in the ordinary course of business. They highlighted that this acquisition was undertaken after assuming responsibility for significant debts and liabilities owed by these companies. In support of their arguments, reference was made to the documents filed on record, including balance sheets of each of the companies, as well as orders passed by the NCLT and other authorities over time. 34. Learned counsels for respondents No. 12 and 13 also relied on decisions in Sri Ramdas Motor Transport Ltd. v. Tadi Adhinarayana Reddy (1997) 5 SCC 446; Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd. (2013) 5 SCC 470; Subhash Jain v. Rajeshwari Shivam (2021) 20 SCC 454; South Indian Bank Ltd. v. Naveen Mathew Philip 2023 SCC OnLine SC 435; and PHR Invent Educational Society v. UCO Bank 2024 SCC OnLine SC 528. STAND OF RESPONDENT NO. 5/GREENOPOLIS WELFARE ASSOCIATION 35. It is pertinent to mention that respondent No. 5/Greenopolis Welfare Association, in its counter-affidavit inter alia brings out that respondents No. 3/TCSPL & 11/Orris jointly sold 1650 units, i.e. 559 and 1091 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... status reports of the court-appointed IRP and other orders and judgments passed by various adjudicating authorities, including those dated 09.08.2019 and 20.08.2019. 37. A reference was similarly made to the order dated 29.03.2022 passed by the NCLT in CP IB No. 2721/2019, as well as the order dated 01.07.2021 in SLP(C) No. 7712/2021, which relied upon an email dated 15.10.2019 from one of the ex-promoters of respondent No. 3/TCSPL. This email clearly highlighted that, in one of the accounts of respondent No. 3/TCSPL concerning the project 'Greenopolis', there were transactions exceeding Rs. 202 crores. Furthermore, an additional Rs. 132 crores were transferred out of the company, thus evidencing that nearly Rs. 512 crores had been siphoned off and given as loans or advances by respondent No. 3/TCSPL. 38. The attention of this Court was drawn to the raids conducted by the Enforcement Directorate against the respondent No. 3/TCSPL and its ex-promoters/ex-Directors. Mr. Mehta, learned Counsel supported the findings in the report of the IRP dated 09.08.2023, asserting that that its credibility remains intact and cannot be disputed. As regards the non-joinder of the present applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. The Status Reports dated 29.02.2024 and 01.04.2024 were filed pursuant to the directions of this Court dated 21.02.2024 and 20.03.2024, respectively. It is brought out in such reports that the investigation in the present matter has been carried out in accordance with the order dated 28.03.2024 passed by the Competent Authority/Ministry of Corporate Affairs [MCA] (Annexure R-1), the gist of which is as under: - "F.No.CL-II-05/6/2024-O/0 DGCOA-MCA Dated: 28/03/2024. ORDER Subject: Investigation order under section 210 of M/s Three C Shelters Private Limited and its related companies in terms of order of the Hon'ble High Court of Delhi dated 02.02.2024-Regarding PARAGRAPH (1) & (2) omitted as not relevant 3. Now, therefore, in exercise of powers conferred under section 210 (2) of the Act, in the public interest, the Central Government hereby orders the Investigation into the affairs of M/s. Three C Shelters Private Limited and other related companies in terms of the order passed by Hon'ble Delhi High Court dated 02.02.2024 4. Further Investigating Officer is further to look into the following during investigation: (a) Evaluate the fleeing risk of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing risk and submit a proposal for freezer of assets in terms of the Honorable High Court orders dated 02/02/2024, in the subject company. 4. This is issued with the approval of the Competent Authority., Encl: As stated Yours faithfully, Sd/- Sridhar Bavisetty, Joint Director Copy to: 1. Registrar of Companies Delhi, for information please 2. Guard File." 44. The aforesaid report dated 14.06.2024 provides the details of the companies that are, prima facie, subject to investigation, which are as follows: Sr. No. Name of the Company CIN 1. Three C Shelters Pvt Limited U70200DL.2010PTC212025 2. Three C Properties Pvt Limited U70200DL2010PTC205856 3. Three C Homes Pvt Limited U70101DL2011PTC212252 4. Three C Green Developers Pvt Limited U70102DL2010PTC211958 5. Piyush It Solutions Private Limited U70102DL2011PTC221242 6. Hacienda Projects Pvt Limited U70200DL2010PTC199426 7. Granite Gate Properties Pvt Limited - Two Projects U45200DL2007PTC202952 8. Boulevard Projects Pvt. Limited U70200DL2010PTC203764 9. Three C Projects pvt Limited U70200DL2010PTC205607 10. Bright Buildtech Pvt limited U45201DL2006PTC146221 11. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60055 14. Three C Residency Pvt Limited U70109DL2011PTC228512 Acquired land parcel of Three C Group by paying inadequate consideration. 15. Three C City Developers Pvt Ltd U70100DL2010PTC211944 16. Orris Infrastructure Pvt Limited U70109DL2006PTC151295 The Company was associated with. Three C Shelters and acquired land of home buyers related to Three C Shelters Pvt Ltd without paying any consideration 17. Cloud 9 Projects Pvt Limited U70200DL2009ULT186855 The company received funds from homebuyers and as per the direction of Allahabad High Court, proceedings has been initiated Enforcement Directorate. THE IRP REPORT AND CONCLUSIONS: 45. In light of the investigation being conducted pursuant to this Court's impugned order dated 02.02.2024, it is evident that the bulk of the detailed oral submissions and the voluminous compilations filed and relied upon by the parties, concerning the IRP report, are being substantiated by the petitioner and respondent No. 11/Orris, while being vehemently contradicted by applicants/respondents No. 12 & 13. 46. Before addressing the pleas and counter-pleas put forth by the respective parties, it must be clarified that, in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p settled with the Petitioner in IBC proceedings (Pg. 40-41 of CM No. 11516 of 2024). i. The Balance Sheet of Bright Buildtech Pvt. Ltd. as on 31.03.2019 shows that it has assets worth approx. Rs. 700 crores (Pg. 68 of Compilation dated 24.05.2024) on that date. This is only the Book Value, whereas the market value of the development rights in land admeasuring 50 acres would be much higher. 3. Three C City Developers Pvt. Ltd. NOIDA Land admeasuring 20,000 sq.mts. was sub-leased in favour of this company (Pg. 54 of CM No. 11516 of 2024). On 25.07.2019, the shareholding of this company was transferred to Ace Group for an amount of Rs. 1 lakh. i. Ace Group took over liability to pay 90% of outstanding lease premium of this land amounting to Rs. 71 crores. i. The Balance Sheet of Three C City Developers Pvt. Ltd. as on 31.03.2019 shows that it has assets worth approx. Rs. 36 crores (Pg. 48 and 63 of Compilation dated 24.05.2024). This is only the Book Value, whereas the market value of the land allotted to this company, would be much higher. ii. Further, the Balance Sheet also shows that this company owed money to the tune of approx. Rs. 18 crores (Pg. 58 of Compilation dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the applicant/respondents No. 12 and 13 have then alluded to the balance sheet of TCRPL and it was pointed out that although its shares were purchased for Rs. 1 Lacs by the year ending 31.03.2019 it had total liability of Rs. 13,21,09,885/- due to the Yamuna Expressway Authority against leasehold land besides unsecured loans and advances to the tune of Rs. 2,54,44,684/-. The said liabilities are relatable to details in Note No. 181. As regards BBPL, it also appears from its balance sheet that its total assets for the year ending 31.03.2019 was Rs. 70,129.990/- and Rs.65882.44 respectively. 51. Likewise with regard to BBPL, it was urged that this Court is being mis-lead that assets worth Rs. 700 crores were handed over on a platter to the ACE Group of Companies, but the said assets are again in the nature of "inventories" and no tangible assets in the nature of any immovable properties was owned or possessed by the said company. It is likewise urged that in the case of TCCDPL, the figure of assets taken at Rs. 36 crores are again misnomer, since the assets again contained inventory besides short term loans and advances. It was pointed out that the term "inventory" is defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ace Group of Companies after settling the liabilities of the secured creditors in accordance with the orders of the NCLT in CIRP proceedings against Bright Group, as per the order dated 22.01.2020. It was further stated that after the Ace Group of Companies became the corporate and personal guarantor to the secured creditors, including Yes Bank, and agreed to pay the outstanding dues toward EDC [External Development Charges]/IDC [Internal Development Charges] to the Director General of Town & Country Planning, Haryana, the project name was changed from Wood View Residencies to Ace Palm Floors by MTPPL. It was strongly asserted that there are hundreds of homebuyers and investors in the Ace Palm Floors project, who have made valuable investments and acquired legal ownership rights, and that the project is in an advanced stage of completion. 55. As regards TCCDPL is concerned, it is sought to be projected that though it had acquired a plot of land measuring 20000 Sq. Meters numbered as SC-011C5, Sector 78 and 79 Sports City, Noida vide sub-lease dated 11.12.2024 but no development work could take place purportedly due to lack of clarity on the part of the Noida Authority in framing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the affairs of the respondent No. 3/TCSPL as well as the Ex-Promoters and Directors of the respondent No. 3/TCSPL was going on at a snail's pace. This Court stayed the operation of SCN dated 10.07.2024 issued by the respondent No. 1 against applicant/respondent No. 11/Orris. However, the said order was challenged by respondent No. 5, Greenopolis Welfare Association, and the Division Bench of this Court in LPA No. 790/2024 vide order dated 14.08.2024 with the consent of the parties set aside the order dated 23.07.2024 and gave liberty to the respondent No. 11/Orris to raise all contentions and submission qua SCN either before the Investigating Officer or by filing appropriate remedies in accordance with law. 59. It may be reiterated that the arguments have been addressed by the parties on different dates, accommodating the Senior Advocates and after the order was reserved on 18.09.2024, the matter was placed for directions to ascertain whether any orders had been passed by the Supreme Court in the interregnum. This Court on 22.11.2024 was apprised that the Supreme Court vide order dated 19.11.2024 has passed the following directions: "CIVIL APPEAL NO(S). @ DIARY NO. 40077/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before the NCLT, and the same would be decided by the NCLT as expeditiously as possible and in any case within a period of four weeks upon filing of such an application. 6. Till the orders are passed by the NCLT, the order of status quo passed by this Court on 13.10.2023 shall continue to operate. 7. We clarify that we have not considered the merits of the allegations and rebuttal thereof and the NCLT would take decisions on the basis of the material placed before it. C.A. NOS... ... @ DIARY NO(S). 40077/2023 1. Delay condoned. 2. The appeals are disposed of, in terms of the signed order. CONMT.PET.(C) NO. 13-17/2024 IN C.A. NO. 6792-6796/2023, CONMT.PET.(C) No. 586-590/2024 in C.A. No. 6792-6796/2023 & CONMT.PET.(C) No ....@ DIARY NO(S). 23327/2024 The contempt petitions are disposed of, in terms of the signed order." 60. It is brought on record that, subsequent to the aforesaid directions, the matter came up before this Court for further clarifications on 14.02.2025. This Court has been apprised that, in the interregnum, the NCLT, pursuant to the aforesaid directions by the Supreme Court dated 19.11.2024, considered certain Interim applications filed at the beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, if the RP performed the function in compliance of the aforementioned order, he committed no wrong in preparing the reports and placing the same before the courts including before the Hon'ble Supreme Court to show his Bonafide. It is not so that the RP could publish any final list of creditors or could constitute CoC to go ahead with CIRP process. On the face of various judicial orders and there being nobody to take responsibility of the CD, the IRP acted with required responsibility and magnanimity. 37. We may not be oblivious of the fact that the present proceedings somehow concern the fate of more than 1800 Home Buyers and we need to express our concern in this regard. 38. Taking holistic view in the matter we reject the application for replacement/removal of IRP, but appoint a Monitoring Committee comprising of Hon'ble Mr. Justice Sunil Gaur, former judge of Hon'ble Delhi High Court [Mob: 9971000718], Ms. Rashmi Chopra, Sr. Counsel [Mob: 9810311218; rashmichopra6897@gmail.com] and Mr. Anil Mittal, ex-C.V.O of Canara Bank [Mob: 9619773811; mittalanil.ubi@gmail.com] to monitor the affairs of the process till Constitution of CoC. 39. The two associations bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02DL2010PTC211958 Under CIRP 31/03/2019 5. Piyush IT Solutions Private Limited U70102DL2011PTC221242 Under CIRP 31/03/2020 6. Hacienda Projects Pvt. Limited U70200DL2010PTC199426 Under CIRP 31/03/2017 7. Granite Gate Properties Limited U45200DL2007PTC202952 Under CIRP 31/03/2017 8. Boulevard Projects Pvt Limited U70200DL2010PTC203764 Active 31/03/2017 9. Three C Projects Pvt Limited U70200DL2010PTC205607 Under CIRP 31/03/2019 10. Bright Buildtech Pvt Limited U45201DL2006PTC146221 Active 31/03/2024 11. Three C Universal Developers Pvt Ltd U45200DL2007PTC160055 Under CIRP 31/03/2019 12. Three C Town Planners Pvt Limited (Presently Mega Town Planners Pvt Limited) U70109UP2010PTC169949 Amalgamated 31/03/2022 13. Three C Residency Pvt Limited U70109DL2011PTC228512 Active 31/03/2024 14. Three C City Developers Pvt Ltd U70100DL2010PTC211944 Active 31/03/2024 15. Orris Infrastructure Pvt Limited U70109DL2006PTC151295 Active 31/03/2024 16. Cloud 9 Projects Pvt Limited U70200DL2009ULT186855 Active 31/03/2017 "5. Summons issued to Complainant, IRP/RP and all Directors of Three C Shelters Private Limited an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 and 13, along with respondent No. 5/Greenopolis Welfare Association on the other side, are complex set of facts which need to be addressed by the NCLT in view of the directions of the Supreme Court. 63. Thus, there is no gainsaying that the NCLT is seized of the matter with regard to the CIRP proceedings pertaining to respondent No. 3/TCSPL, which will invariably delve into all the relevant aspects of the matter. At the cost of repetition, a Monitoring Committee has already been constituted by the NCLT, which will naturally examine the complex factual issues and facts raised by the parties, including the successive reports by the three IRPs appointed including the present one, besides the revival of respondent No. 3/ TCSPL so as to provide some relief to the petitioner and homebuyers. 64. The bottom line is that the petitioner is espousing her personal cause and, in doing so, has also espoused the cause of the similarly placed investors/claimants/homebuyers, who form a distinct class and whose long-promised dream of owning residential flats remains unfulfilled, as construction has been stalled for over thirteen years now. Their contributions towards construction, amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul purpose; (ii) that persons concerned in the formation of the company or the management of its affairs have in connection therewith been guilty of fraud, misfeasance or other misconduct towards the company or towards any of its members; or (iii) that the members of the company have not been given all the information with respect to its affairs which they might reasonably expect, including information relating to the calculation of the commission payable to a managing or other director, the managing agent, the secretaries and treasurers or the manager, of the company." 3. The conditions for the exercise of the statutory power are clearly stated in Section 237 (b). It is well to bear in mind, firstly, that Section 237 (b) confers an administrative and not a judicial power; secondly, that the power is discretionary; thirdly, that the object of the investigation is to find out whether in fact fraud etc., have been committed by persons in relation to the company's affairs; fourthly, that the condition for making the order is the opinion of the Central Government that there are circumstances suggesting fraud, etc. and lastly that there is no appeal from such opinion to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised exceptions to the self-imposed restraint of the High Courts, in cases where a statutory alternative remedy of appeal is available, is the lack of jurisdiction on the part of the statutory/quasi-judicial authority, against whose order a judicial review is sought. Traditionally, English courts maintained a distinction between cases where a statutory/quasi-judicial authority exercised a jurisdiction not vested in it in law and cases where there was a wrongful exercise of the available jurisdiction. An "error of jurisdiction" was always distinguished from "in excess of jurisdiction", until the advent of the decision rendered by the House of Lords, by a majority of 3 : 2 in Anisminic Ltd. v. Foreign Compensation Commission [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)]. After acknowledging that a confusion had been created by the observations made in R. v. Governor of Brixton Prison, ex p Armah [R. v. Governor of Brixton Prison, ex p Armah, 1968 AC 192 : (1966) 3 WLR 828 (HL)] to the effect that if a Tribunal has jurisdiction to go right, it has jurisdiction to go wrong, it was held in Anisminic [Anisminic Ltd. v. Foreign Compensation C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ig, and which was extracted in the decision in R. (Privacy International) v. Investigatory Powers Tribunal, 2019 UKSC 22 : (2019) 2 WLR 1219, seems to have opined that once the distinction between jurisdictional and non-jurisdictional errors was discarded, there was no longer any need for the ultra vires principle and that ultra vires is, in truth, a fig leaf which has enabled the courts to intervene in decisions without an assertion of judicial power which too nakedly confronts the established authority of the Executive or other public bodies. According to Sir John Laws, Anisminic, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL) has produced the historical irony that with all its emphasis on nullity, it nevertheless erected the legal milestone which pointed towards a public law jurisprudence in which the concept of voidness and the ultra vires doctrine have become redundant. In R. (Privacy International), 2019 UKSC 22 : (2019) 2 WLR 1219 the UK Supreme Court also quoted the editors of De Smith's Judicial Review to the effect: "84. ... 'The distinction between jurisdictional and non-jurisdictional error is ultimately based upon foundations of sand. Much of the superstructure has alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )] alone to have provided the breakthrough. In Mafatlal Industries Ltd. v. Union of India [Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536], Paripoornan, J. provided the list of Indian cases which cited Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] with approval. They are: (1) Union of India v. Tarachand Gupta & Bros. [Union of India v. Tarachand Gupta & Bros., (1971) 1 SCC 486] , (2) A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372], (3) R.B. Shreeram Durga Prasad & Fatehchand Nursing Das v. Settlement Commission [R.B. Shreeram Durga Prasad & Fatehchand Nursing Das v. Settlement Commission, (1989) 1 SCC 628 : 1989 SCC (Tax) 124], (4) Associated Engg. Co. v. State of A.P. [Associated Engg. Co. v. State of A.P., (1991) 4 SCC 93] , and (5) Shiv Kumar Chadha v. MCD [Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161]. 20. But in M.L. Sethi v. R.P. Kapur [M.L. Sethi v. R.P. Kapur, (1972) 2 SCC 427], K.K. Mathew, J., made certain interesting observations about Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)]. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the availability of a statutory right to challenge within a specified time-limit, among other points, provided a sufficient basis for distinguishing Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)]. This was taken note of by the UK Supreme Court in Regina (Privacy International) [R. (Privacy International) v. Investigatory Powers Tribunal, 2019 UKSC 22 : (2019) 2 WLR 1219]. Therefore the question whether the error committed by an administrative authority/tribunal or a court of law went to jurisdiction or whether it was within jurisdiction may still be relevant to test whether a statutory alternative remedy should be allowed to be bypassed or not. 23. In several cases, both in England and India, the ancient rule stated by Willes, J., in Wolverhampton New Waterworks Co. v. Hawkesford [Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CBNS 336 : 141 ER 486] to the effect that where a liability not existing at Common Law is created by a statute, which also gives a special and particular remedy for enforcing it, the remedy provided by the statute must be followed, has been quoted with approval. For instance, United Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is not by-passing the jurisdiction of the NCLT to determine the fate of the respondent no. 3/TCSPL, which is involved in CIRP, nor is it usurping any power under Section 63 of the IBC. However, it is undeniable that the investigation by respondents No. 1 and 2 is progressing at a snail's pace qua respondent No. 3/TCSPL and its ex-promoters & directors, marked by tardiness and a lack of urgency, which is unacceptable in law and prejudicial to the interests of the homebuyers. 69. Much has been argued on behalf of applicants/respondents No. 12 and 13 that they acquired the companies, as reflected in the IRP's report, at arm's length. However, it cannot be overlooked that when the ACE Group of Companies acquired these companies, they must have been aware of the goodwill and reputation of these companies and their ex-promoters and directors, who were facing several litigations from that investors, both secured and unsecured. Therefore, the ACE Group of Companies needs to come clean regarding these acquisitions and the investigation as directed under Chapter XIV cannot be scuttled. Moreover, it is not within the domain of this Court to delve into the minutest aspects of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest; or (d) on request from any department of the Central Government or a State Government. 73. Section 212(3) of the Companies Act, 2013 provides that the Central Government has the power to order investigation in respect of any company which it deems necessary and also to order special investigations in respect of other concerns related to corporate law. The Central Government may appoint any authority, officer or agency to conduct the investigations and to report its findings to the Central Government with the primary objective of investigating frauds and offences relating to a company under section 447 of the Act. The entire setting of the present matter, compels this Court to direct the Central Government to entrust the investigation to the SFIO as regards the role of the ex-promoters and directors of respondent no. 3/TCSPL is concerned. Reference can be invited to decision by the Telangana High Court in Karvy Stock Broking Limited vs Union of India 2020 SCC OnLine TS 1048, where it was emphasized that the Central Government's opinion is sufficient to order an SFIO investigation based on prima facie circumstances of fraud or wrongdoing. Additionally, the Bombay High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its logical end; (v) As regards respondent No. 11/Orris, respondent Nos. 1& 2 while conducting investigation shall have due deference to various judgments/orders/directions passed on the judicial side as well by the quasi-judicial authorities; (vi) As regards ACE Group of Companies too, respondent Nos. 1 & 2 shall have due deference to various judgments/orders/directions passed on the judicial side as well by the quasi-judicial authorities (vii) Respondent Nos. 1 & 2 shall investigate the matter against the ACE Group of Companies uninfluenced by the findings in the report of the IRP dated 09.08.2023 in accordance with Sections 206, 209, 216, 217 and 224 of the Companies Act, 2013; (viii) In case the Investigating Officer appointed by respondent Nos. 1 & 2 finds that there has been any connection between the Management of respondent No3/TCSPL as well as ACE Group of Companies with regard to M/s. Bright Buildtech Pvt. Ltd.; M/s. Mega Town Planners Pvt. Ltd.; Three C Residency Pvt. Ltd; Three C City Developers Pvt. Ltd., he shall be empowered to inquire into the same and examine and satisfy himself about the genuineness of such acquisitions in accordance with law, except for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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