* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 21st July, 2016
+ C.A. No.777/2016 in CO.PET. No.66/2012
M/S. CHINA TRUST COMMERCIAL BANK ..... Petitioner
Through None
versus
LILLIPUT KIDSWEAR LTD. & Ors. ..... Respondents
Through Mr.Anjaneya Mishra, Adv. with
Mr.Rajiv tuli, Adv. for applicant in
CA No.777/2016 and 2520/2016.
Mr. Piyush Sharma, Adv. with Ms.
Sakshi Jain, Adv. for applicant M/s
Sapphire Diamond Exports Pvt.
Ltd. (in C.A. Nos.775/2016)
Mr. Rahul Rajpal, Adv. for applicant
M/s. L.R. Verma Fashion Pvt. Ltd.
(in C.A. Nos.3730-31/2015 & 950
& 952/2016)
Mr. Nayantara Narayan, Adv. for
applicant in CA No.2664/2014.
Mr. Ashish Makhija, Adv. for OL
Mr. Vineet Sharma, Adv. with
Mr. Satish Aggarwal, Adv. for
Central Excise.
Mr.Hari Sharan Singh, proxy
counsel for Lilliput Kidswear Ltd.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. By this order, I propose to decide the application on behalf of Mr.Sanjeev Narula, Mr.Ranjeev Narula, Mrs.Sarita Narula, Mr.Ashok Kapoor, Mr.Virender Kapoor, Mrs.Veena Kapoor and Mrs.Vimi Kapoor, under Order 9 of the Company (Court) Rules, 1959 seeking directions Co.Pet. No.66/2012 Page 1 of 8 to be issued to the Official Liquidator to comply with order dated 4th February, 2014 passed in C.A. No.268/2014 by this Court for obtaining possession of the property of the applicant.
2. The applicants are the joint owners and landlords of the premises bearing No. 7A/40, W.E.A. Ajmal Khan Road, Karol Bagh, Delhi measuring approximately 7000 sq. ft. (built up area) comprising of basement + ground + first + second + third floors) (hereinafter refer to as "demised premises"). M/s.Lilliput Kidswear Limited through its authorized representative Mr.Anurag Tiwari, executed the Lease agreement dated 24th August, 2009 with the applicants to use and occupy the aforesaid premises for a period of nine (9) years against payment of monthly rent of Rs.10,57,000/- plus service tax on the terms and conditions incorporated in the said lease agreement duly registered with the office of the Sub-Registrar-III, Asaf Ali Road, New Delhi, bearing Registration No. 6070 in Additional Book No. 1, Vol. No. 13316 on pages 162 to 180. Out of the aforesaid term of 9 years, 24 months were to be the lock in period, wherein neither party was allowed to terminate the Lease agreement, except for the breach/default as mentioned in the said agreement.
3. M/s Lilliput failed to pay the rent as well as the service tax of the subject property since December 2011 till date which is in contravention of Clause-4A of the lease agreement. The applicants accordingly issued a demand correction notice dated 26.04.2012 to the M/s Lilliput calling upon to pay the rent as well as the service tax which was duly served upon it.
4. The applicants again issued a termination notice dated 12.05.2012, duly served upon M/s Lilliput, in terms of Clause-4D whereby the lease deed dated 24.08.2009 was terminated. The Co.Pet. No.66/2012 Page 2 of 8 applicants vide legal notice dated 12.05.2012 also called upon M/s Lilliput to pay the rent @10,57,000/- from December 2011 till May 2012 alongwith the service tax of Rs. 27,43,594/- and for handing over the vacant peaceful possession of the property which M/s Lilliput failed to do so.
5. M/s Lilliput had also issued 7 (Seven) cheques for the purpose of the payment of the rent for the month of December, 2011 after the Tax deducted at source which was dishonoured by the applicants' banker. M/s Lilliput has further issued 6 (six) cheques to the applicants for the payment of the Service Tax for the period from April 2010 till March, 2012 (24) months in part payment of the Service Tax which were also dishonoured for the want of sufficiency of fund.
6. Further in terms of the arbitration clause in the lease deed the applicants initiated the Arbitration proceedings for the recovery of their claim, which now accumulated to the tune of Rs. 8 Croroes (approx.). By order dated 4th March, 2013 passed by this Court, HMJ Shri S.K. Mahajan, (Retd.) was appointed as the sole arbitrator. Vide order dated 6th January, 2014 a provisional liquidator was appointed by this Court. This fact was apprised to the applicants in the proceedings before the Ld. Arbitrator on 15.01.2014 whereafter the proceedings was adjourned sine die vide order dated 15.01.2014, however with the observation to revive the same with the leave of this Hon'ble Court.
7. On 27th January, 2014 the applicants filed an Application under Rule 9 of Companies (Courts) Rules 1959 along with Section 446 of Companies Act bearing CA No 268 of 2014 in CP No 66 of 2012 for taking the possession of the demised premises and vide order dated 4th February, 2014 this Court had directed the Official Liquidator to Co.Pet. No.66/2012 Page 3 of 8 take expeditious steps to take charge of Demised Premises, make an inventory of the assets lying in the said premises of the Applicant and estimate time for releasing the vacant possession to the Applicant and further granted the liberty to the applicants herein to approach the Court in case the Premises are not released within a period of 6 (six) months from the date of order.
8. The Official Liquidator sealed the abovementioned demised premises and took possession of the entire assets, stock in trade of M/s Lilliput in March-April 2014, however the possession was not handed over. The applicants again filed an Application (CA No. 1494/2014) whereby the Court was informed that despite the order dated 04/02/2014, the demised premises was not handed over to the Applicants, to which the Official Liquidator informed that the Division Bench vide order 17th April, 2014 in Company Appeal No. 6/2014, had directed not to take further steps with regard to the winding up of the Company.
9. This Court by order dated 14th July, 2014, granted leave to the Applicant to approach the Division Bench for clarification/ modification of order dated 17th April, 2014. The applicants then filed an application bearing CA No.16879/2014, 16881/2014 & 27907/2014 in Company Appeal No.6/2014 seeking clarification of the order dated 17th April, 2014, which was eventually clarified vide order dated 23rd November, 2015. in the following terms:
"3. These landlords have filed CM Nos. 12576/2014, 16879/2014, 16881/2014, 17415/2014, 6906/2015, 12435/2015, 21341/2015, 23096/2015 and 27907/2015 before us seeking leave to prosecute their claims against the company.
4. We are informed that the learned Company Judge has refused to consider the prayer of these landlords in view of Co.Pet. No.66/2012 Page 4 of 8 the interim order passed by us on 17th of April 2014. We find that by the order passed on 17th of April 2014, we had only interdicted the Official Liquidator from taking further action with regard to winding up of the company which on that date related to taking over the properties of the company. We had not interdicted consideration of a prayer made by the third party before a learned Company Judge with regard to its claims against the appellant company. This position would subsist even on date.
5. So far as the appellant's submission that in view of the registration of its reference, none of these matters can be proceeded with is concerned, it is open for the company to make such submission as well as any other submission it may have before the court or forum before which such prayer is made by the landlords/property owners.
6. So far as this court is concerned, without opining in any manner on the merits of the submissions made in these applications, the applications are disposed of with liberty to the applicants to avail appropriate remedy before the learned Company Judge or any other court or forum."
This order has neither been assailed by the Official liquidator nor by M/s Lilliput Kidswear Limited.
10. Pursuant to the order dated 23rd November, 2015 from the Division Bench of this Court, the applicants wrote to the Official Liquidator vide letter dated 20th January, 2016 requesting to take actions in terms of the Order dated 4th February, 2014 passed by this Court and order dated 23rd November, 2015 passed by the Division Bench with regard to the applicant's property but neither a reply has been received from the Official Liquidator's office till date nor they have taken any action to de-seal and handover the possession of the demised property.
Co.Pet. No.66/2012 Page 5 of 811. The applicants have now approached this Court by virtue of the present application seeking directions to the Official liquidator to expeditiously comply with the order dated 4th February, 2014 passed by this Court in CA No.268 of 2014 and act towards de-sealing and handing over the possession of the property situated at premises bearing No. 7A/40, W.E.A. Ajmal Khan Road, Karol Bagh, Delhi measuring approximately 7000 sq. ft. (built up area) comprising of basement + ground + first + second + third floors), to its absolute owner, the applicants herein, as M/s. Lilliput Kidswear Ltd. has been in unauthorized occupation of the same since the year 2011.
12. M/s Lilliput Kidswear Ltd. is in unauthorized/illegal occupation of the demised premises therefore the present application seeking appropriate directions to the official liquidator in terms of the order dated 4th February, 2014 passed by this Court has been filed to have atleast the vacant possession of the property in question of which the applicants are the absolute joint owners.
13. In view of the above referred facts and circumstances and order passed on 4th February, 2014, the applicants are entitled to take the possession of the demised property. As per settled law, the M/s Lilliput Kidswear Ltd./respondents have no case on merit. The prayer made in the present application filed by the applicants is liable to be allowed. Consequently, the respondent/Official Liquidator is directed forthwith to de-seal and handover the peaceful and vacant possession of the demised premises. The articles/stocks of M/s. Lilliput Kidswear Ltd. lying at the demised premises could be shifted/removed to 180, IMT Manesar, Gurgaon, being the other alternative property of M/s. Lilliput Kidswear Ltd. and thus, there would be no prejudice caused to the respondent/Official Liquidator or M/s. Lilliput Kidswear Ltd. They Co.Pet. No.66/2012 Page 6 of 8 are directed to hand over the vacant possession of the demised premises to the applicants without any further delay in terms of order dated 4th February, 2014 passed in CA no.268 of 2014 filed in Co. Pet 66/2012.
14. As far as other reliefs are concerned, the applicants shall be entitled to claim the same as per law. As the applicants are facing problem in getting the possession from Official Liquidator, it is necessary to appoint a Local Commissioner to comply the order.
15. Accordingly, Mr. Mayank Bamniyal, Advocate (Mobile No.9971999961) is appointed as Local Commissioner to visit and take vacant possession of the premises bearing No. 7A/40, W.E.A. Ajmal Khan Road, Karol Bagh, Delhi measuring approximately 7000 sq. ft. (built up area) comprising of basement + ground + first + second + third floors) in terms of the order dated 4th February, 2014 after approaching the Official Liquidator in advance and informing about the passing of orders. Mr.Vijay Kumar Sharma, staff of this Court (Mob. 9899707575), is appointed as the Assistant to the Local Commissioner in order to assist him in execution of the commission.
Consequently, the Official Liquidator is directed to comply with this order after taking proper steps and transfer all the goods lying at the demised premises after de-sealing the same and hand over peaceful possession of the demised premises to the applicants. The goods lying at the demised premises be transported to 180, IMT Manesar, Gurgaon after de-sealing the said premises and re-seal the same after shifting the said goods and other records lying in demised premises belonging to the company in liquidation. The cost of the said transportation/shifting shall be paid by the ex-directors of the company in liquidation. The Official Liquidator and Local Co.Pet. No.66/2012 Page 7 of 8 Commissioner are entitled to take police assistance from the local police, if so required. SHO of the area shall provide full assistance for the purpose of compliance of the order if there is any protest from the side of M/s. Lilliput Kidswear Ltd. or its ex-directors who shall otherwise co-operate with the Local Commissioner to comply the orders passed by this Court. The fee of the Local Commissioner is fixed at Rs.70,000/- excluding expenses and fee of assistant to Local Commissioner is fixed at Rs.30,000/- excluding expenses, which shall be paid by the applicants.
The Local Commissioner shall file his report on or before 29th July, 2016 i.e. the next date of hearing.
16. The present application is accordingly disposed of.
17. A copy of this order be given dasti to the learned counsel for the applicants under the signatures of the Court Master. CA No.2520/2016 Learned counsel for the applicants wishes to withdraw the present application. The same is dismissed as withdrawn.
(MANMOHAN SINGH) JUDGE JULY 21, 2016 Co.Pet. No.66/2012 Page 8 of 8