9911796707
TMI Blog2025 (2) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 - The modus operandi adopted by them in defrauding the homebuyers has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oring Committee overseeing the process.
Application disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... n directions against respondent No. 1/Registrar of Companies, and respondent No. 2/Union of India through the Ministry of Corporate Affairs for taking cognizance, initiation and conduction of appropriate inquiries and investigation against the management of respondent No. 3/TCSPL, as well as its shell/sister group of companies, for alleged action of manipulation of records and siphoning of funds to shell/sister companies based in Kolkata and elsewhere. Additionally, the petitioner sought reliefs in the nature of freezing the assets of such unscrupulous companies and their promoters/directors to safeguard the legal rights of the investors/claimants/homebuyers like the present petitioner. 5. This Court vide impugned order dated 02.02.2024, referred to certain facts unearthed by the IRP in his Status Report-2 dated 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and observations have been brought to the fore as well:- "7.1. It is respectfully submitted that the records have revealed that there is another group of company viz. Ace Group, wherein there is a direct connection / commonality between the promoters of the Three C Group and the Ace Group. The records demonstrate that the management of Ace Group and Three C group is inter-related with each other. This is also clearly established from the fact that one Mr. Pratap Singh Rathi, Director of Ace Infracity Developers Pvt Ltd. (one of the flagship companies of Ace Group) has been a common director in M/S Ace Infracity Developers Pvt. Ltd. since 30.01.2015 till present and in Three C Residency Private. Ltd. (one of the companies of Three C Group) from 30.10.2019 to 09.03.2021. Furthermore, Mr. Pratap Singh Rathi 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 Brigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Group' and respondent No. 3 'Three C Groups of Management' having common Directors and likewise with 'M/s. Bright Buildtech Pvt. Ltd' and other shell companies so much so that huge parcel of land in YEIDA area (Yamuna Expressway Industrial Development Area) as well in Gurgaon and other places have been transferred to M/s. ACE Infracity for nominal value of Rs. 1 lac. This Court has been taken through several documents on the record with respect to transfer of shell companies to ACE Group. It is also submitted that Ace Infracity Pvt. Ltd. is a proxy of respondent no. 3 and Resolution Plan which has been submitted by the IRP is assailed before the Supreme Court which has been stayed in Civil Appeal no. 007762/2023 vide order dated 08.01.2024." 6. In view of aforesaid prima facie findings and forming an assumption 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, followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the application moved on behalf of applicants/respondents No. 12 and 13 by their respective learned Senior Advocates on different dates, as well as by the learned counsel for the petitioner and the learned Senior Advocate for respondent No. 11/M/s. Orris Infrastructure Private Limited ["Orris"], Meanwhile, CM. APPL. No. 10599/224, though argued on 21.02.2024, appears to have not been pressed so far. Anyhow, this Court must consider whether there are any grounds for reviewing, recalling or modifying the order dated 02.02.2024. APPLICANT NOS. 12 &13 IN CM APPL. 11516/2024 9. The applicants/respondents No. 12 and 13 submit that although the order dated 02.02.2024 was directed at respondents No. 1 and 2 to inspect the affairs of the respondent No. 3/TCSPL, they are directly affected, as the IRP has endeavoured to 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/modificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phs (16) to (20) of the application are reproduced hereunder in toto: "16. The petitioner in the Writ Petition claims to be an allottee of an apartment in one Greenopolis group housing project in sector 89-90, Gurugram, Haryana (Greenopolis Project, in short) in terms of apartment buyer agreement dated 20-06-2013 (ABA, in short) executed by Three C Shelters and Orris Infrastructures Private Limited, i.e. Respondent No. 11 (Orris, in short). It may be noted that Greenopolis is being constructed and developed by Three C Shelters under a development agreement dated 02-11-2011 (Development Agreement, in short) executed between Orris and Three C Shelters. Orris is the landowner and the licensee of the Greenopolis and Three C Shelters is the developer/contractor. From a bare perusal of ABA and the averments in the Writ 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 AB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner whose primary grievance is siphoning of assets of Three C Shelters has failed to make any prayer (s) and/or relief(s) against the relinquishment and transfer of the Balance Greenopolis Project Land by Three C Shelters to Orris without any consideration. Further, even more surprising is the fact that despite clear findings returned by the NCLT, Principal Bench New Delhi and the HARERA, Gurugram that the primary responsibility of completing the Greenopolis Project is that of Orris, there is no prayer or relief in the Writ Petition against Orris. 20. In a short span of time of 14 years Ace Group has completed and delivered 07 residential projects viz. Ace Platinum, Ace City, Ace Aspire, Ace Golfshire, Ace Parkway, Ace Divino all situated in Noida and Greater Noida, Uttar Pradesh and Ace Palm Floors 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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order dated 02.02.2024. LEGAL SUBMISSIONS BY RESPONDENTS NO. 12 & 13 14. During the course of lengthy arguments spanning several days, vociferous submissions have been made to the effect that ACE Group is an independent Group of Companies and is in no way associated with or related to the business of respondent No. 3/ TCSPL. It is reiterated that BBPL, TCRPL and TCCDPL were acquired by ACE Group on an arm's length basis for valuable and fair consideration in the ordinary course of business. Furthermore, considerable emphasis has been placed on the locus standi of the petitioner, alleging her to be a proxy acting at the behest of a rival group, i.e., respondent No. 11/Orris, and the petition having been filed without disclosing that an application for her impleadment was pending consideration before the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the competent forum, namely the NCLT, NCLAT and/or for that matter by the Supreme Court. Significant arguments have been advanced regarding the alleged overreach by the IRP in attempting to take control of certain legitimately acquired assets/ parcels of land that originally belonging to respondent No. 3/TCSPL but now under the control and possession of the ACE Group of Companies. In this regard, reference has been made to the decision in Embassy Property Development Private Limited v. State of Karnataka (2020) 13 SCC 308. 19. At this juncture, it is pertinent to mention that learned Senior Advocates for the applicants/respondents No. 12 and 13 have filed a compilation delineating as many as eight share purchase agreements executed with regard to companies that had been formed by the erstwhile promoters and 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 Goe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of M/s Prateek Infraprojects Private Limited. 22. It is undeniable that the attention of this Court has been drawn to the aforementioned share purchase agreements to buttress the point that the sales and acquisitions of certain companies belonging to the respondent No. 3 were conducted in the ordinary course of business by the ACE Group of Companies. This included the acquisition of companies such as BBPL, TCCDPL, TCRPL at arm's length, with ACE Group of Companies assuming responsibility for clearing substantial financial debts and liabilities of these companies. Additionally, it is pertinent to highlight that certain plots in the project being developed in Sectors 78 and 79 in Noida, Uttar Pradesh, by the respondent No. 3/TCSPL were leased to different groups during the period 2013-2014. CHALLENGE BY RESPONDENTS 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livered on 29.02.2024, which goes as under: "3. This is a classic case of conning, as to how the promoters without investing any amount gets huge tracts of prime land allotted, launches a project and collects Rs. 636 crores from the home buyers, out of which they again syphon off almost Rs.190 crores (then sell off a portion of land to a 3rd company, pocket and then syphon the entire sale proceeds (Rs.236 crores), and pay a pittance to Noida Authority, towards the cost of land/premium for land and lease rent, which they were supposed to pay, and defrauded the home buyers, Noida Authority, Banks and other creditors. Not only this but they have also defrauded hundreds of other home buyers in various other projects similarly launched by them with different names. As a part of that conning scheme, after launching 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." 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COMPLETE CONTROL OF HPPL WITH THE PROMOTERS EVEN AFTER RESIGNING 91. The promoters of the company even after resigning have a complete control over the company. This fact has been ascertained with the several emails, which have been brought on record, which goes to prove that the promoters even much after resigning have been managing the affairs of the company and had been sending emails where they have shown concerns among themselves about rearrangement of the affairs of the company and other group companies irrespective of the purported resignation given by them from these companies long time back. 92. The fact that the promoters are still in the driving seat and have a complete control on the affairs of HPPL and other group companies has also been recognized by the order dated 30.04.2019 passed by Hon'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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/TCSPL had seemingly vanished, instead running the affairs of respondent No. 3/TCSPL through dummy persons, such as pantry boys and stooges, who had no stakes in the company. 29. Alluding to the IRP report dated 09.08.2023 (Annexure P-16), it was urged that, prima facie, there are grounds to assume that sister/shell concerns of respondent No. 3/TCSPL, which had acquired certain tractions of the land measuring 37.09 acres, sold them for a meagre amount of Rs. 1 lakh. It was pointed out that the formation of these sister concerns can be deciphered from the proceedings in OMP(I) (COMM.) 299/2019, whereby this Court vide order dated 09.08.2019 and 20.08.2019, passed certain directions. 30. At this juncture it would be expedient to reproduce the order dated 20.08.2019 which goes as under: "1. Pursuant to the proceedings 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the given facts and circumstances is that the money as per the terms of settlement arrived at between the petitioner company and respondents No. 1 and 2 can be released to the petitioner company which will keep the same in a separate escrow account albeit for a period of four (4) weeks from the date of receipt of funds. 12. In case the petitioner company does not receive notice of any proceedings or orders of any appropriate court or authority, it would, as indicated to me, utilise the money only for the projects referred to in paragraph 6 of the affidavit filed on its behalf. 13. Accordingly, the instant petition and pending applications are closed with the following directions:- (i) The Registry will release to the petitioner company, out of the sum of Rs.250 crores retained with it, a sum of Rs. 65.50 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court's directions on 02.02.2024, cannot be sustained, as the IRP himself has expressed uncertainty regarding the conclusiveness of the facts presented and has called for further investigations. It was vehemently urged that the IRP has colluded with the promoters and directors of both respondent No. 3/TCSPL and respondent No. 11/Orris, exceeding his powers by attempting to take possession of certain properties belonging to the applicants/ACE Group. Further arguments were made regarding the locus standi of the petitioner to invoke an investigation into the company's affairs as outlined in Section 210 (2) of the Companies Act, 2013. 33. Lastly, the learned Senior Advocates for applicants/respondents No. 12 and 13 took this Court through the documents and the compilation placed on record, emphasizing that companies 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all application filed by the applicants/respondents No. 12 and 13, arguing that they have not only concealed material facts but are also acting as proxies for respondent No. 3/TCSPL. The petitioner claims that these parties, in active collusion, have been able to siphon off significant funds in connivance with the promoters and directors of the Three C Group of companies. Mr. Tanmay Mehta, learned counsel argued that the application filed by the applicant/respondent No. 7, Mr. Vidur Bhardwaj, must be outrightly rejected in light of the Supreme Court's order dated 11.03.2024 in CA No. 7704 of 2023, concerning the maintainability of the present petition. He emphasized that the petitioner, an aggrieved homebuyer and senior citizen, is merely highlighting a large-scale fraud that has been established through the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the project 'Greenopolis', and respondent No. 3/TCSPL as the developer/contractor. While much has been argued regarding the maintainability of this petition, particularly questioning the locus standi of the petitioner, this Court is not persuaded by those arguments. There appears to be no suppression of material facts on the part of the petitioner. The present writ petition is not stricto senso a Public Interest Litigation, but rather one indirectly advancing the cause of similarly situated investors/claimants/homebuyers, who form a distinct class. STATUS REPORT ON BEHALF OF RESPONDENT NO. 1 42. At this juncture, it is pertinent to mention that the Registrar of Companies, Northern Region, has filed four Status Reports at various intervals, in compliance with this Court's directions, with respect to the ongoing 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 [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffairs, New Delhi. Sub: Investigation in the matter of Three C Shelters Private Limited and its group entities in terms of order of the Hon'ble High Court of Delhi dated 02.02.2024. - regarding. Sir, 1. With reference to the subject cited above, I am directed to refer to IOs letter dated 08.05.2024 (a copy enclosed) wherein requested for approval of the Central Government under Section 219 of the companies Act, 2013 with regard to companies mentioned in Annexure-1, herein. 2. In this regard, I am directed to convey the approval that IO is permitted to invoke powers of the Inspector under Section 219 of the Companies Act, 2013 while conducting investigation into Affairs of related companies consequent to the investigation order dated 28/03/2024. 3. You are also requested to direct IO to examine fleeing 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 211958 23.12.2021 5. PIYUSH IT Solutions U70102DL2011PTC221242 Petition under Section 9 of IBC is pending 6. Hacienda Projects Pvt Limited U70200DL2010PTC199426 11.11.2022 7. Granite Gate Properties Pvt. Limited - Two projects U45200DL2007PTC202952 10.01.2019 8. Boulevard Projects Pvt Limited U70200DL2010PTC203764 08.02.2019 9. Three C Projects Pvt Limited U70200DL2010PTC205607 29.10.2020 10. Bright Buildtech Pvt Limited U45201DL2006PTC146221 Taken over by ACE Group 11. Three C Universal Developers Pvt Ltd U45200DL2007PTC160055 17.12.2019 Table No. 03 12. Three C Town Planners Pvt Limited (Now Mega Town Planners Pvt Limited) U70109DL2010PTC211989 This company is associated with Bright Buildtech Pvt Ltd 13. Three C Universal Developers Pvt Ltd U45200DL2007PTC160055 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 Shelter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. as on 31.03.2020 shows that it has assets worth approx. Rs. 236 crores (Pg. 5 and page 33 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. 2. Bright Buildtech Pvt. Ltd. The ownership of Three C Town Planners was transferred to Lotus Greens LLP in 2012. Three C Town Planners is 100% owner of Bright Buildtech Pvt. Ltd. Bright Buildtech Limited has development rights in approx. 50 Acres of Land at Sector 89-90, Gurugram, Haryana (Pg. 37 r/w 39 of CM No. 11516 of 2024). Ace Group acquired shareholding of Three C Town Planners Ltd. in June 2019 for an amount of Rs. 1 lakh. i. The company had no assets or cash or bank balance. ii. IBC proceedings had been initiated against this case, however, the Ace Group 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 woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truction materials. ii) Development rights represents amounts paid by the Company under collaboration agreement, to acquire exclusive and irrevocable development rights on the identified land. 49. Long story short, it was pointed out that since TCRPL was entangled in legal conundrum with YIEDA [Yamuna Expressway Industrial Development Authority], the said company was acquired by the ACE Group of Companies on 27.11.2020, taking on all its liabilities. Subsequently, any actions or inactions on the part of YIEDA were contested before the Allahabad High Court in Civil Writ Petition No. 22354/2023, and as per directions of the Court dated 14.07.2023, a sum of Rs. 50 crores have since been deposited towards subject property by TCRPL, which is now controlled by Ace Group of Companies. 50. Learned Senior Advocates for 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/-. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the necessary legal formalities. It is also claimed that, at the time of the transfer of control and ownership to Lotus Green LLP, MTPPL had no assets, properties, or projects, as shown in its balance sheet for 31.03.2012 and trial balance sheet for 12.07.2012. It is asserted that, in fact, no part of MTPPL's land was included in the land allegedly allotted to respondent No. 3, or to Lotus Green LLP, in Section 89 of the Greenopolis Project. Furthermore, it is pointed out that BBPL launched a project named Wood View Residencies using its own funds and resources in 2013. However, due to defaults in construction and development, numerous claims were filed before HRERA, NCTL, and NCDRC, as the project was at risk of being declared an NPA [Non-Performing Asset]. 54. It is argued that BBPL was acquired by the 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 outstan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rises is whether the foregoing submissions on the part of the learned counsels for the parties should at all be considered by this Court sitting in writ jurisdiction under section 226 of the Constitution of India, 1950? Before the same is answered, we must look into the judicial orders that have passed during the course of the proceedings before this Court. JUDICIAL ORDERS PASSED DURING THE PROCEEDINGS: 58. There was a grievance espoused by the applicant/respondent No. 11/Orris in CM APPL. 41270/2024 that the respondents No. 1 and 2 taking shelter behind the order of this Court dated 02.02.2024, are directing investigation into the affairs of the applicant/respondent No. 11/Orris. Suffice to state that on perusal of the Status Report filed by the respondents No. 1 and 2, it was observed that the investigation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration versus Rakesh Kumar Gupta & Ors. 1. These appeals are admitted. 2. Until further orders, there shall be stay of the impugned order dated 28.08.2023 passed by the National Company Law Appellate Tribunal (NCLAT), Principal Bench. 3. It is clarified that the stay would not mean the stay of proceedings before the National Company Law Tribunal (NCLT) and the same would proceed in accordance with law. 4. Some of the parties have raised serious grievance with regard to the conduct of the Interim Resolution Professional (for short, 'IRP'). Shri Nalin Kohli, learned senior counsel appearing for the IRP disputes the said allegations. 5. We do not find it necessary to go into the said allegations. The parties which has/have grievance with regard to the conduct of the IRP would be entitled to move an application 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 allegati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order passed by this Tribunal as upheld by Hon'ble NCLAT cannot be set to have committed any irregularity or lapse. If the IRP has taken some view regarding rejecting any claim erroneously or even so accepting any other claim, the parties are not without remedy and they can always approach this Tribunal by way of an appropriate application. Once this Tribunal had directed the RP to do the verification, the IRP could not have done the same, without having access to books and other records qua the CD. As far as the issue of preparation of status report by the RP and placing the same before the courts are concerned, as can be seen from the aforementioned, on 26.05.2023, this Tribunal directed him to do the verification and on 19.07.2023, Hon'ble NCLAT asked him to complete the process within 4 weeks. 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 var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e NCLT, it is also pertinent to indicate at this juncture that a fresh Status Report was called by this Court from respondents No. 1 & 2, considering the long lapse of time since the hearing of the arguments on 18.09.2024. A Status Report dated 10.02.2025 has been filed by the Inspector Seema Rath, Joint Director, RD (Northern Region). In a nutshell, the Status Report reveals that investigation is going on into 16 more companies, the details of which are as under: SN Name of the company CIN Status Last Balance Sheet Filed 1. Three C Shelters Pvt. Limited U70200DL2010PTC212015 Under CIRP 31/03/2017 2. Three C Properties Pvt. Limited U70200DL2010PTC205856 Active 31/03/2023 3. Three C Homes Pvt. Limited U70101DL2011PTC212252 Active 31/03/2019 4. Three C Green Developers Pvt Limited U70102DL2010PTC211958 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he information is bulky and is being examined." DECISION: 62. In view of the aforesaid turn of events and considering the complexity of the factual narrative and interwoven set of legal proceedings involving several parties and decisions rendered by the Supreme Court, along with the fact that NCLT is now seized of the matter, the bottom line is that the petitioner and those who are similarly placed, i.e., the homebuyers, are yet to see the light at the end of the tunnel. Unhesitatingly, this Court finds no ground to recall the order dated 02.02.2024. The issues relating to the genuineness of the IRP report dated 09.08.2023, which has been espoused on behalf of the petitioner, respondent No. 11/Orris and respondent No. 4/Greenopolis Welfare Confederation on one side, and contested by applicants/respondents No. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. v. S.D. Agarwal 1968 SCC OnLine SC 372 does not help them in any manner. The Supreme Court had an occasion to consider the scope of exercise of powers under Section 237 (b)2 of the Companies Act, 1956, and it was held: 2. Section 237 (b) provides that the Central Government may appoint one or more competent persons as inspectors to investigate the affairs of the company and to report thereon in such manner as the Central Government may direct, "if, in the opinion of the Central Government, there are circumstances suggesting: (i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose, or in a manner oppressive of any of its members or that the company was formed for any fraudulent or unlawful 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 reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 237 (b) is not fulfilled. On this ground I interfered with the order under Section 237 (b) in Barium Chemicals v. Company Law Board[(1966) Supp 3 SCR 949] . 67. In summary, there are overwhelming material to suggest that the buying and selling of sister concerns, which were previously managed and controlled by the ex-promoters & directors of respondent No. 3/TCSPL, raise significant concerns that warrants investigation. Likewise, the reliance placed on the case of Embassy Property Developments (P) Ltd. v. State of Karnataka (2020) 13 SCC 308, does not aid the applicants/respondents No. 12 and 13. The Supreme Court, while addressing the issue of the High Court's jurisdiction to interfere with the discretion exercised by judicial and quasi-judicial authorities, held as under: "15. One of the well-recognised 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve, if the decisions of such courts are declared by the statute to be final and conclusive. Thus one distinction was gone with Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147: (1969) 2 WLR 163 (HL)], but another was born with Racal, In re [Racal Communications Ltd., In re, 1981 AC 374 : (1980) 3 WLR 181 (HL)]. This could be seen from the after-effects of Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] . [Anisminic, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL) had its own quota of problems. Prof. Wade, as pointed out in R. v. Lord President of the Privy Council, ex p Page, 1993 AC 682 : (1992) 3 WLR 1112 (HL), seems to have opined that the true effect of Anisminic was still in doubt. People like Sir John Laws, quoted by Prof. Paul Craig, 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 enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sachindra Nath Chatterjee, (1969) 3 SCR 92 : AIR 1969 SC 823] was followed in a recent decision in Iffco Ltd. v. Bhadra Products [IffcoLtd. v. Bhadra Products, (2018) 2 SCC 534 : (2018) 2 SCC (Civ) 208], quite independent of Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] and its followers. 19. Though the decision in Official Trustee [Official Trustee v. Sachindra Nath Chatterjee, (1969) 3 SCR 92 : AIR 1969 SC 823] preceded Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] and can proudly be claimed as the Indian precursor to an English legal landmark, several subsequent decisions of this Court considered Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilability of alternative remedy. That there exists such a distinction between (i) cases where the jurisdiction of a superior court is questioned on the basis of ouster clauses and (ii) cases where the exercise of jurisdiction by a superior court is questioned on the ground of availability of alternative remedy, was recognised even in Anisminic [Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 : (1969) 2 WLR 163 (HL)] , when Lord Reid referred to the decision in Smith v. East Elloe Rural District Council [Smith v. East Elloe Rural District Council, 1956 AC 736 : (1956) 2 WLR 888 (HL)] as posing some difficulty. As a result, the Court of Appeal held in R. v. Secy. of State for the Environment, ex p Ostler [R. v. Secy. of State for the Environment, ex p Ostler, 1977 QB 122 : (1976) 3 WLR 288 (CA)] 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. Invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uation where CIRP is initiated fraudulently "for any purpose other than for the resolution of insolvency or liquidation". 52. Therefore, if, as contended by the Government of Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65 (1). Therefore, it is clear that NCLT has jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT will also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61." 68. In the light of the aforementioned proposition of law, this Court 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 tar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ACE Group acquired some of the sister companies at arm's length, as part of the ordinary course of business, and notably, none of their companies have acquired land in Gurugram that is part of the "Greenopolis Project." INVESTIGATION BY SERIOUS FRAUD INVESTIGATION OFFICE [SFIO] 72. At this juncture, it is pertinent to refer to Section 212 (1) of the Companies Act, 2013, that enables the Central Government to entrust investigation into the affairs of a company to SFIO under where Government is of the opinion that it is necessary to investigate into the affairs of a company - (a) On receipt of a report of the Registrar or inspector under section 208 of the Companies Act, 2013; (b) On intimation of a special resolution passed by a company that its affairs are required to be investigated; (c) On the public 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.9/Mr. Rajeev Bisoya besides respondent No. 10/Mr. Girish Chander Joshi through the SFIO to unearth the manner in which the funds generated from the petitioner and other homebuyers have been siphoned off to the detriment of its secured and unsecured creditors including the homebuyers; (iii) In so far as respondent No. 11/Orris, as well as ACE Group of Companies represented by applicants/respondents No. 12 and 13 are concerned, the said companies shall be outside the purview of investigation by the SFIO; (iv) However, respondents No. 1 & 2 shall continue to investigate the matter with regard to ascertaining the genuineness of the transactions between respondent No. 11/Orris and respondent No. 3/TCSPL in accordance Sections 206, 209, 216, 217, 219 and 224 of the Companies Act, 2013, and take the matter to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts commencing on 19 August, 2013 along with interest rate of 12.50% p.a. on outstanding balance. Yamuna Expressway Industrial Development authority has the first charge upon the demised premises for the amount of unpaid balance, charge, interest and other dues. The Company has not recognized the Lease rent, Lease premium and interest on lease rent and lease premium for the Financial year 2018-19. 2. (b) may do so if, [in its opinion or in the opinion of the Tribunal], there are circumstances suggesting - (i) that the business of the company is being conducted with intent to defraud its creditors, members or any other persons, or otherwise for a fraudulent or unlawful purpose or in a manner oppressive of any of its members, or that the company was formed for any fraudulent or unlawful 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 infor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
