Full Text
M^-HAVISYLVIA Appellant
Through: Mr.Aman Vachher,Mr.Ashutosh Dubey,Mr.Abhishek Chauhan and
Mr.Sagar Mehra,Advocates.
Through: Mr.Rajiv Balh,Advocate for O.L.
AND •
^ + CO.APP. 11/2015 and C.M.Nos.10060-10061/2015^
C KRUPESHWARA
Appellant
Through: Mr.Rajiv Bahl,Advocate for O.L.
G HARINATHA REDDY
Appellant
R SANDHYA
Appellant
"v + CO.APP. 14/2015 and C.M.No.10070/2015 B VENKAT VAMSHIDHAR
Appellant
SUKHLEEN K SALUJA
Appellant
KOKALA RAMESHWARI
Appellant
^ SHIVESH GOEL Appellant
M SURESH KUMAR
▼ Appellant
P.SAILA SUTHA Appellant
HON'BLE MR.JUSTICE I.S.MEHTA
06.10.2015
ORDER
1. The appellants before us have assailed the following orders: S.No. Co.App.No. Date of Order
(i) Co. App. 10/2015
(ii) Co. App. 11/2015
(iii) Co.App. 12/2015
(iv) Co.App. 13/2015
(v) Co.App. 14/2015
(vi) Co.App. 15/2015
7.3.2012 in CA 476/2012 in CP 265/98 23.8.2011 inCA 1633/11 in CP 265/98 23.8.2011 in CA 1633/11 in CP 265/98 23.11.2011 in CA 2307/11 in CP 265/98 9.9.2011 inCA 1679/11 in CP 265/98 8.12.2011 in CA 2359/11 in CP 265/98 5.3.2012 in CA 462/12 in CP 265/98 22.11.2011 in CA 2307/11 in CP 265/98
1)
(vii) Co.App. 16/2015 7.3.2012 in CA 480/12 in CP 265/98
(viii) Co.App. 17/2015 22.11.2011 in CA 2292/11 in CP 265/98
(ix) Co.App. 18/2015 5.3.2012 in CA 454/12 in CP 265/98
(x) Co.App. 19/2015 9.2.2012 in CA 2295/11 in CP 265/98
2. The learned Single Judge has dismissed the applications as aforesaid of the appellants under Section 536(2) of the Companies Act praying for acceptance ofthe sale deeds ofthe plots ofthe respondent-company to them.
3. Learned counsel for both the parties submit that identical challenges by way of Co.App.Nos.44-49/2014 (at page 44 of the paper book) have been allowed by a Division Bench of this Court vide order dated 12"' September,2014. The appellants before us claim thatthey have validly paid the sale considerations towards the plots and that the impugned orders are liable to be set aside for the same reasons as have been noted in the order dated 12"'September,2014,which is extracted hereunder: "10. The appellantsthereafterapproachedthe learnedCompanyJudge byfiling the application under Section 536(2) ofthe Companies Act seeking validation ofthe approvalin theirfavour. The appellants have urgedthatthey were the bonafidepurchasers withoutknowledge ofthe passing ofthe order dated 18th ofOctober, 1997ofthe ReservedBank ofIndia or the order dated5th ofJune, 1998 ofthe learned Company Judge appointing the provisional liquidator. They also claimed that they havepaidentire 7consideration oftheplotin question in termsof the agreement to sell which was unaiithorisedly entered into by the respondent company and hence the present case was afit casefor passing ofthe order underSection 536(2)ofthe CompaniesAct.
11. We are informed that apartfrom the appellants there were several otherpersons who were identicallysituated who had been also directed 1L/ ■^v by Mr. Ganpati to part with the remaining part of the sale considerationfor the lands. Their claims were also rejectedby the One Man Committee and they had also approached the learned Company Judge by way offiling an application under Section 536(2) of the Companies Act. Some of these applications were rejected by the learnedCompany Judge by orderpassedon 23rdAugust, 2011 and9th September, 2011 compelling thesepersons tofile the appeals before the Division Bench of this court including the Company Appeal Nos.15/2012; 16/2012; 17/2012; 18/2012; 19/2012; 21/2012; 22/2012; 36/2012; 37/2012; 38/2012; 39/2012; 40/2012; 41/2012; 46/2012; 47/2012; 48/2012; 49/2012; 50/2012; 53/2012; 54/2012; 55/2012; 56/2012; 103-112/2012. These appeals were consideredby the Division Bench and by the order dated6th ofSeptember. 2012. the orders ofthe learned Company Judge rejecting their applications under Section 536(2) ofthe Companies Act came to be set aside.
12. Mr. Ashutosh Dubey, learned counsel for the appellant has also placedbefore us a subsequent order dated17thDecember, 2012passed on Co.App.Nos.l03, 104, 105, 106, 107, 108, 109, 110, 111, 112 all of 2012 raising an identical challenge wherein also similar appeals ofthe appellants were also accepted.
13. Mr. Rajiv Bahl, learned counsel has pointed out certain new facts which were placed before the Appellate Bench. It was pointed out by Mr. Rajiv Bahl that the Income Tax Department hadpassedan order of attachment dated 14th September, 1998, soon after the appointment of the official liquidator but before execution of the sale deed. Mr. Bahl, learned counsel has also pointed out to this court that the learned Company Judge had referred the matter to the Serious Fraud Investigation Office, report whereof was awaited which shall have a serious bearing on the outcome ofthe application.
14. There can be no dispute with regard to thefact that receipt of[9] the part sale consideration by Colonel Canapati, was without any authority oflaw. The sale deed was executedby him afterpassing ofthe order of the Reserve Bank of India as well as after appointment of the provisional liquidator. The One Man Committee hadhowever accepted the validity of the agreements to sell as well as receipt of the part payment by the companyprior to the filing of the winding uppetition. In this background, even if the receipt of the consideration by Colonel Canapati and the execution of the sale deed was invalid, the learned •-V' Company Judge would be required to examine the question as to whether the appellants were the bonafide purchaser ofthe property in question or not.
15. It is submitted by Mr. Dubey, learned counselfor the appellant, that without prejudice to the rights and contentions that they have validly paid sale consideration, in order to obviate anyfurther delay andfor reasons ofexpediency, the appellants are willing to make payment of the balance consideration afresh to the accountofthe company with the official liquidator.
16. This offer also deserves to be considered before the learned 10 Company Judge. We are informed that the cases of the appellants which came to be decided on 6th of September, 2012 and 17th of December, 2012 are still pending consideration before the learned Single Judge.
17. The report of the Serious Fraud Investigation Office has been placed before the learned Single Judge but has yet to be considered by the court. The Income Tax Authority as yet to submit their report on consideration ofthe matter. Interests ofjustice merit that the claims of these appellants be also placed with the claims ofthe other persons in the previously decided appeals who are identically placed as the present appellants deserve to be considered afresh by the learned Company Judge in the light ofthe observations made by us herebefore.
18. Undoubtedly, there is delay in not onlyfiling the appeal but also in refiling. The appellant has given sufficient explanation seeking condonation ofthe delay ofthe applicationsfiled in this regard. For the view we have taken based on the orders passed on 6 th ofSeptember, 2012 and 17th of December, 2012, we are inclined to accept the explanation tendered by the appellants,firstly, in 11filing the appeals and thereafter, in refiling the same as well.
19. The view has been taken in the peculiarfacts and circumstances which have been set out in detail above."
4. So far as the similarity ofthe claims made by the present appellants as was before this Court on 12"" September, 2014 is concerned, it is not disputed on behalf of the Official Liquidator. The appellants in these ^vr appeals are, therefore, also entitled to similar treatment as the appellants in the Co.App.Nos.44-49/2014.
5. In view ofthe above,we direct as follows:
(i) Delay in filing the appeal as well as re-filing these appeals is hereby condoned.
(ii) The impugned orders dated 23'"'' August, 2011, p"' September,
(iii) The appellants shall appear before the learned Single Judge on
6. The appeals as well as the applications are allowed and disposed ofin the above terms. G/TA MITTAL,J OCTOBER 06,2015 'dc'