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ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS INSOLVENCY JURISDICTION
NOTICE OF MOTION (L) NO.9726 OF 2022
IN
INSOLVENCY PETITION NO.18 OF 2017
Shalaka Projects Private Limited … Applicant
In the matter between :
K.K.B.Properties and anr. … Insolvents
Ex-parte:
Dr. Ramila A. Sanghvi … Petitioning Creditor
The Official Assignee of Bombay and anr. … Respondents
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Mr. Darshit Jain i/by Mr. Sanjay Gawade, Advocates for the Applicant.
Mr. Anil Bagwe, Advocate for the Insolvents.
Ms. C. J. Bhatt, Official Assignee is present.
Ms. M. R. Parkar, Insolvency Registrar is present.
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ORAL JUDGMENT
1. This Notice of Motion has been filed by one Shalaka Projects Private Limited seeking directions of this Court to the Official Assignee to vacate the formal possession of Flats No. E-404 and E-408 (the “said flats”) situate in Kasturkunj Co-operative Housing Society, Shivaji Nagar, Pune. Priya R. Soparkar 1 of 15
2. It is the case of the Applicant that the Applicant-Company was incorporated on 20th June, 2018 and purchased the said flats from one K.K.B. Properties Private Limited on 15th January, 2021[6] for a consideration of Rs.[1] crore 77 lakhs paid in the following manner: Amount Particulars Rs.47,00,000/- (Rupees Forty Seven Lacs Only) issued by the purchaser to the VENDOR by Chq. No.235234 dtd. 15/01/2016 drawn on IDBI Bank, F.C.Road Branch, Pune. Rs.65,00,000/- (Rupees Sixty Five Lacs Only) issued by the purchaser to the VENDOR by Chq. NO. 235235 dtd. 15/01/2016 drawn on IDBI Bank, F.C.Road Branch, Pune. Rs.63,23,000/- (Rupees Sixty Three Lacs Twenty Three Thousand Only) issued by the purchaser to the VENDOR by Chq.No.235236 dtd. 15/01/2016 drawn on IDBI Bank, F.C.Road Branch, Pune. Rs.1,77,000/- (Rupees One Lacs Seventy Seven Thousand Only) deducted @ 1% of total consideration and to be paid to the Government in the name of Vendor u/s 194-IA of IT Act towards Tax Deduction at source on sell of property Total in words: Rs. One Crore Seventy Seven Lacs Only/. Priya R. Soparkar 2 of 15
3. It is also not in a dispute that the seller K.K.B. Properties Private Limited was incorporated at Mumbai on 3rd May, 2006 with Mr. Atul Indrakumar Bora (who as will be seen was later on declared as Insolvent on 17th April 2018) and Aarushi Bora-his wife, as shareholders and Directors and on 16th August, 2006 the said company acquired the said Flats vide Agreement for Sale from City Development Corporation and as noted above, the said company has sold the said Flats to the Applicant on 15th January 2016.
4. Mr. Darshit Jain, learned counsel appearing for the Applicant would submit that after purchasing the said Flats, the Applicant on 21st January 2016 also mortgaged the said flats in favour of the Punjab National Bank for a loan with the personal guarantee of its Directors-Mr. Ravindra Lunawat with Swati Lunawat. That the order of adjudication of Mr.Atul Indra Kumar Bora, one of the shareholders and Directors of K.K.B. Properties Private Limited came to be passed on 17th April, 2018. Mr. Jain would submit that thereafter on 18th June, 2018 and on 21st September, 2018 a letter was addressed from the society in which the said Flats were situate giving documents including sale deed/agreements, share certificates, reflecting that the subject flats were sold by K.K.B. Properties Priya R. Soparkar 3 of 15 Private Limited to and in the name of the Applicant-company. That thereafter on 12th September, 2018 and 12th November, 2020 letters were addressed by the Official Assignee to the society not to deal with the subject flats as formal possession was taken. Mr. Jain would submit that on 1st February, 2022 a letter was addressed form the Applicant to the Official Assignee requesting that the Official Assignee withdraw the letters written to the society. On 22nd February, 2022 loan recall notice from Punjab National Bank was addressed to the Applicant referring to the security created on the said flats after which on 21st March, 2022, the present notice of motion came to be been filed.
5. The Official Assignee has filed her reply as well as the additional reply in the matter seeking to justify the vesting and the formal possession of the said Flats on various grounds.
6. Mr. Jain, learned counsel for the Applicant would submit that since the purchase transaction to the Applicant is dated 15th January, 2016 and the order of adjudication is 17th April, 2018, Section 55 of the Presidency Towns Insolvency Act, 1909 (the “said Act”) would not apply. Priya R. Soparkar 4 of 15 Secondly, learned counsel would submit that the seller is a Private Limited company which is a separate legal entity distinct from its shareholders and directors just because one of the shareholder and director has become Insolvent, the Official Assignee cannot justify the vesting in it of Insolvent’s property under Section 17 of the said Act, as the said Flats are not the assets of the Insolvent. Learned counsel has relied upon the following decisions in support of his contentions: i) Anirban Roy and Another vs. Ram Kishan Gupta and Another[1] ii) Sunil Parmeshwar Mittal vs. Deputy Commissioner (Recovery Cell), Central Excise, Mumbai and Others[2] iii) Sunita Ramesh Bansal vs. Assistant Commissioner of State Tax[3]
7. Learned counsel therefore submits that this Court direct the Respondent No.1- the Official Assignee to vacate the formal possession of the said flats.
8. I have heard the learned counsel and also considered the submissions made by him as well as the affidavits filed by the learned Official Assignee.
9. The dates and events being undisputed, before proceeding further it would be apposite to quote section 55 of the Presidency Towns Insolvency Act, 1909 as under: “55. Avoidance of voluntary transfer. - Any transfer of property, not being a transfer made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, shall, if the transferor is adjudged insolvent within two years after the date of the transfer, be void against the official assignee.”
10. A bare perusal of the said section indicates that section 55 provides for avoidance of voluntary transfer by the Official Assignee. It provides that any transfer of property made in favour of the purchaser shall be void against the Official Assignee, if the transferor has been adjudged insolvent within two years of the date of the transfer unless the same is made in favour of the purchaser in good faith and for valuable consideration, which means that if the transferor of a property is adjudicated insolvent, then if the transfer was made within a period of two years prior to the said adjudication then unless it is a transfer made in good faith and for valuable consideration, the said transfer would be avoidable by the Official Assignee. Priya R. Soparkar 6 of 15
11. In the facts of this case, it is undisputed that the Applicant purchased the said flats on 15th January, 2016, for a consideration of Rs. 1.77 crores through cheques as indicated above, which has not been disputed by the Official Assignee, whereas the order of the adjudication is of 17th April, 2018, which is more than two years after the registered sale. Therefore, in my view the provisions of section 55 would not apply to the facts of this case.
12. Once it is held that Section 55 of the said Act does not apply, it would ideally not be necessary to dwell on any other aspect of the matter and allow the Notice of Motion, however, since allegation of collusion has been made by the Official Assignee, the other submissions/judgments are being considered.
13. Moreover, it is also not in dispute that, the sale and purchase of the said Flats has been made between K.K.B. Properties Private Limited and the Applicant which are private limited companies incorporated under the Companies Act, 1956. K.K.B. Properties Private Limited was the owner of the said Flats before sale to the Applicant by a registered sale deed for Rs.1.77 Crores. It is well settled that a company is a separate legal entity distinct from its shareholders and directors and the property of the company cannot be said to be property of its shareholders or directors. Priya R. Soparkar 7 of 15
14. Paragraphs 8 to 10 of the decision of the Delhi High Court in Anirban Roy and Another vs. Ram Kishan Gupta and Another (supra) are relevant and are usefully quoted as under:
15. Also paragraph 28 of the decision of a Division Bench of this Court in Sunil Parmeshwar Mittal vs. Deputy Commissioner (Recovery Cell) (supra), is usefully quoted as under:
16. In the facts of this case, the learned Official Assignee has objected to the Notice of Motion submitting that the Insolvent No.2 is the Director of the Applicant and that he and his family members have been found to be occupying the said flats. That, there is collusion between the Applicant and K.K.B. Properties Private Limited as at the time of registration of the sale deed in favour of the Applicant, both the Applicant and K.K.B. Properties Private Limited were represented by only one and the same person i.e. Mr.Ravindra Lunawat, who was power of attorney holder of K.K.B. Properties Private Limited through its director Atul Indrakumar Bora, viz. the Insolvent no.2 and also as director of the Applicant viz. Shalaka Projects Private Limited. It is submitted that the question arises as to whether one and the same person can represent both the vendor and purchaser before the Sub-Registrar and how one and the same person can sign on behalf of both the parties at the time of registration, and therefore there is collusion. Priya R. Soparkar 11 of 15
17. Coming first to the allegation of collusion on the ground that one and the same person viz. Mr. Ravindra Lunawat, who is a Director of the Applicant as well as the Power of Attorney holder on behalf of the seller K.K.B. Properties Private Limited has executed the sale-deed before the the vendor and the purchaser before the Sub-Registrar, I am of the view that the said allegation is only stated to be rejected as neither there is any law prohibiting the same nor any material has been brought before me to demonstrate that the said act is collusive. It is not unheard of that in property transactions Powers of Attorney are given to the purchaser by the seller to execute and register sale-deeds. It is also settled law that unless there is material which demonstrates fraud, collusion etc, a Court cannot merely on the basis of allegations or suspicion interfere. In the facts of this case no material has been brought before me to hold that there is any collusion.
18. Further, in my view, merely because the Insolvent No.2 was a Director of the Applicant until his adjudication as an Insolvent and merely because he has been occupying the said Flats with his family members cannot be a ground to allege fraud or collusion or invoke Section 55 of the Priya R. Soparkar 12 of 15 said Act, which I have already observed, does not apply in the facts of this case. The share certificate that has been annexed by the Official Assignee to the additional affidavit clearly indicates that K.K.B. Properties Private Limited which is a separate legal entity was the owner of the said Flats. No plea, even a faint one has been made to persuade this Court to lift the corporate veil of K.K.B. Properties Private Limited. It is settled law, as observed by the Hon’ble Gujarat High Court in the case of Sunita Ramesh Bansal vs. Assistant Commissioner of State Tax (supra) while quoting the decision in the case of Maharlal Hirjibhai Virdiya vs. Assistant Commissioner of Commercial Tax[4] that corporate veil is not to be lifted lightly. It is only when there is strong factual foundation for lifting the corporate veil that the question of examining the applicability of the principle of lifting such veil would be required to be examined. There is neither any material nor any ground made out for invoking the doctrine of lifting the corporate veil.
19. The Hon’ble Supreme Court in the case of N. Subramania Iyer Vs. Official receiver, Quilon and anr.[5] has clearly observed that in insolvency proceedings the burden of proof lies on the Official Assignee to challenge
Priya R. Soparkar 13 of 15 the transaction. In this case as can be seen, no material or evidence has been brought to my notice to demonstrate that the transaction was not bonafide or not for valuable consideration or any ground made out to invoke the principle of lifting of the corporate veil, it being undisputed that the said transaction was consummated on 15th January, 2016 and the order of adjudication is dated 17th April, 2018 which is beyond the period of two years as envisaged under Section 55 of the said Act. The allegations of collusion made by the learned Official Assignee, as noted above, are also misplaced and not substantiated by any material.
20. I am, therefore, of the view that the objections of the learned Official Assignee to the Notice of Motion cannot be sustained or countenanced and therefore not sustainable.
21. From the above discussion, it emerges that the said Flats, before being sold to the Applicants, were owned by K.K.B. Properties Private Limited, which is a separate juristic entity distinct from its shareholders or directors and not owned by the Insolvent no.2. The purchase by the Applicants from the said K.K.B. Properties Private Limited has been by a registered sale deed more than two years prior to the subject adjudication Priya R. Soparkar 14 of 15 of insolvency and also not been shown to be not bonafide or not for valuable consideration.
22. Ergo, the Notice of Motion accordingly stands allowed in terms of prayer clause (b) which reads thus: “(b) That this Hon’ble Court be pleased to direct the Respondent No.1 Official Assignee to vacate the formal possession of Flat Nos. E-404 and E – 408 situate at Kasturkunj Co-operative Housing Society Limited, Shivaji Nagar, Pune.”
23. The learned Official Assignee is directed to vacate the formal possession of the said flat Nos. E-404 and E – 408 situate at Kasturkunj Co-operative Housing Society Limited, Shivaji Nagar, Pune within a period of four weeks.
24. Notice of Motion accordingly stands allowed and disposed as above. (ABHAY AHUJA, J.) Priya R. Soparkar 15 of 15