Delhi High Court
Ram Janam Sharma vs M/S Jvg Finance Ltd. on 3 March, 2011
Author: Manmohan
#5-6
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
5.
+ CO.A(SB) 2/2010
RAM JANAM SHARMA ..... Appellant
Through Mr. Mohit Kr. Shah,
Advocate
versus
M/S JVG FINANCE LTD. ..... Respondent
Through Mr. Rajiv Bahl, Advocate for
Official Liquidator with
Mr. S.B. Gautam, Official
Liquidator.
Ms. Manisha Singh with
Ms. Swati Setia, Advocates
for RBI.
WITH
6.
+ CO.A(SB) 3/2010
RAM KRIPAL SHARMA ..... Appellant
Through Mr. Mohit Kr. Shah,
Advocate
versus
M/S JVG FINANCE LTD. ..... Respondent
Through Mr. Rajiv Bahl, Advocate for
Official Liquidator with
Mr. S.B. Gautam, Official
Liquidator.
Ms. Manisha Singh with
Ms. Swati Setia, Advocates
for RBI.
% Date of Decision: 3rd March, 2011
Co. A. (SB) 2-3/2010 Page 1 of 9
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the Reporter or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
JUDGMENT
MANMOHAN, J : (Oral)
1. The present appeals have been filed essentially challenging
the orders dated 17th October, 2008 passed by the Official Liquidator
and the orders dated 12th April, 2005 passed by Mr. G.P. Thareja,
who was appointed on 22nd July, 2004 by this Court to examine and
process the claims of alleged plot holders.
2. The Thareja Committee has found while Mr. Ram Janam
Sharma has paid to respondent-company a sum of Rs. 1,21,990/-,
Mr. Ram Kripal Sharma has paid a sum of Rs. 1,24,424/- to
respondent-company. The Thareja Committee has concluded that
the plots should be released in favour of the said appellants after they
make payments of balance amount of Rs. 77,810/- and Rs. 79,376/-
respectively along with interest at the rate of 12% per annum.
3. Mr. Mohit Kumar Shah, learned counsel for appellants
submits that the Thareja Committee has failed to appreciate that both
the appellants had made full payments and only thereafter the sale
deeds had been executed by the respondent-company. He further
submits that the Thareja Committee has failed to take into account
the payments made by the appellants to the group companies of
respondent.
4. On the other hand, Mr. Rajiv Bahl, learned counsel for
Official Liquidator submits that the sale deeds relied upon by the
appellants and by Thareja Committee are null and void as said sale
deeds had been executed after this Court had appointed a Provisional
Liquidator. He further points out that both the appellants claim to be
allottee of plots in Lok Nayak Jai Prakash Narain Awas Yojna, Patna
(for short 'Yojna'), which lands are incapable of either demarcation
or handing over to the appellants. In this connection, Mr. Bahl has
relied upon the report furnished by the Committee headed by Mr.
B.N. Singh, former Chief Regional Planner, NCR Planning Board,
New Delhi. The extract of the said report reads as under:-
"PART II
LOK NAYAK JAI PRAKASH NARAIN AWAS YOJANA, PATNA
The Committee visited Patna on 25 and 26 August, 2009 to look
into the development works of Lok Nayak Jai Prakash Narain
Awas Yojana, undertaken by the Company in Liquidation. The
details of the said yojana are as below:
1. Nature & Extent of Land owned by Company in
Liquidation
The land of the yojana falls in two villages - Manpur Bairiya
and Pahari measuring 5,50,000 sq. ft. (5.110 hectare), as
advertised by the company in liquidation.
Nature of Land
Land of both the villages i.e., village Manpur Bairiya and village
Pahari is agricultural which is low lying and gets flooded during
heavy rains. As such the site would require earth filling for any
development/construction works.
Extent of Land
As per the publicity brochure advertised by the company
(Annex.I), Lok Nayak Jai Prakash Narain Awas Yojna has an
area of 5,50,000 sq. ft. (5.110 hectare).
The Committee looked into the relevant records made available
by the Official Liquidator office. Only two sketchy layout plans
of the Yojana without details were made available from records
submitted by the individual claimant(s) of the plot. The relevant
lay out plans of the two sites are at Annex VIII & IX.
It cannot be ascertained by the two plans made available whether
the site is contiguous or in two separate pockets. No area details
have been mentioned in any of the lay out plans. During
inspection of the site by the Committee on 25 August, 2009, no
clear cut demarcation of the land by way of pillars or boundary
wall was found. However, some boundary wall and pillars in
part of the area was found existing at the site in village Pahari
which is not adequate to define the extent of land belonging to
the company in liquidation. In absence of dimensioned lay out
plans and clear cut demarcation of site, the Committee members
looked into the title records and village maps made available by
Official Liquidator office and local revenue authorities. The
extent of land acquired on the basis of power of Attorney in
favour of Mr. V. K. Sharma & Mr. Lallan Kumar Singh in village
Manpur Bairiya based on the documents produced by Official
Liquidator is 2.376 hectare (5.87 acre) and the land in village
Pahari, as informed by the local revenue official, proposed to be
acquired by the company but still in the name of the villagers is
2.521 hectare (6.23 acre). Thus the total land in the two villages
works out to 4.897 hectare (12.10 acre).
2. Site Plan setting out the boundary of the property and
developmental works undertaken.
The site plans based on the revenue records showing the extent of
land in the above two villages are enclosed as Annex X & XI.
For looking into the developmental works, the Committee
depended upon the two layout plans produced by Official
Liquidator office. Only in village Pahari, certain development
works like boundary wall, roads and paths (at present in poor
condition), water tank etc., were seen. The area at present is
fully covered with paddy, grass and weeds. The above mentioned
development works are in poor condition and for all practical
purposes, they may be treated as non-functional. Although the
overhead tank is standing at the site but being a water retaining
structure and having remained empty for a long time cannot be
taken as stable and functional unless put to test.
No development works is existing in the land in village Manpur
Bairiya.
3. Photography & Videography
As per directions of Hon'ble High Court, the Photography and
Videography of the site has been carried out which is enclosed as
Annex XIV.
4. Nature & extent of work towards execution of the projects
which has been undertaken including requirement of
obtaining permission status thereof.
a) The nature and extent of works undertaken has been
mentioned in para 2 above. No development works of any
significance exists at the site which could be fruitfully utilized in
new development as and when undertaken.
b) The site of village Manpur Bairiya falls in rural area
(Gram Panchayat) and no development work has been done in
the area. However, the site of village Pahari falls within the
limits of Patna Municipal Corporation. The Official Liquidator
office approached Patna Municipal Corporation to inquire the
status of approval of lay out plan by them. The Municipal
Commissioner, Patna Municipal Corporation has informed vide
his letter dated 27.08.09 that no approval of the plan for the
yojana has been accorded (Annex XII). No copies of sanctioned
plans have been made available to the Committee and the
Committee relied on the layout plans made available by the office
of Official Liquidator for site inspection. No services Plans
(road networks with cross sections, water and sewer lines, storm
water drainage systems, electric lines etc.) were made available
to the committee.
5. Nature & extent of work which is required to be
undertaken in order to complete the project.
The following works related to development of site are
necessary:
a) Clearing of site, leveling and dressing.
b) Internal roads and paths.
c) Sewerage system.
d) Treated water supply line including peripheral grid and
distribution lines
e) Storm Water Drains.
f) Street Lights.
g) Horticulture works.
6. Tentative cost involved if development work is to be
completed.
The tentative cost of the above development works based
on CPWD rates of 2007 enhanced by latest approved cost index
for Patna (Rs.54.50 lac/hectare) works out to Rs.2.70 crore
approximately for 4,897 hectare of land. The above cost does
not include the cost of earth filing for which detailed engineering
estimation will be required to be done to work out the quantity of
earth etc.
Report is submitted accordingly.
Sd/- Sd/- Sd/-
B.N. SINGH L.P. Srivastava B.P. Singh
Former Chief Regional Retd. Additional Director Vice President
Planner NCR Planning, General, CPWD, New Delhi ITCOT
Board, New Delhi. Member of the Committee Consultancy
Member of the Committee and Services Ltd.
#09818484012 #09717340006 New Delhi
Member of the Committee
#09811035491"
5. Having heard the parties, I am of the opinion that the approach
of Thareja Committee is untenable in law. Admittedly, the
appellants have based their rights to the respective plots of land
under the Sale Deeds dated 16th July, 1998. Since in the present
cases the alleged sale deeds are subsequent to the date of filing of the
winding up petition, i.e., 4th June, 1998 and appointment of
Provisional Liquidator, i.e., 5th June, 1998, the Sale Deeds are void
by virtue of Sections 536(2) and 537(1)(b) of the Companies Act,
1956. The said provisions are reproduced hereinbelow:-
"536. Avoidance of transfers, etc., after commencement of
winding up.
xxxx xxxx xxxx xxxx
(2) In the case of a winding up by or subject to the
supervision of the Court, any disposition of the property
(including actionable claims) of the company, and any
transfer of shares in the company or alteration in the status of
its members, made after the commencement of the winding
up, shall, unless the Court otherwise orders, be void.
537. Avoidance of certain attachments, executions, etc., in
winding up by or subject to supervision of Court.
(1) Where any company is being wound up by or subject to
the supervision of the Court-
xxxx xxxx xxxx xxxx
(b) any sale held, without leave of the Court, of any of the
properties or effects of the company after such
commencement; shall be void."
6. Consequently, as the winding up proceedings had commenced
prior to the execution of the Sale Deeds in the present case, same are
void. Moreover, from the report of B.N. Singh Committee appointed
by this Court, it is apparent that the plots of land claimed by the
appellants cannot be handed over to them.
7. Accordingly, keeping in view the aforesaid, the
communication dated 17th October, 2008 issued by the Official
Liquidator and the orders dated 12th April, 2005 passed by the
Thareja Committee are set aside with a direction to the Official
Liquidator to once again determine as to what amount has been
deposited/paid by the appellants to the respondent-company and
after determining the said amount, pass an order directing refund of
the same along with simple interest @ 4% per annum from the date
of deposit. Needless to say, the Official Liquidator shall determine
the said amount after giving an opportunity of hearing to appellants.
The Official Liquidator is also directed to pass a reasoned order
within a period of four months from today.
8. At this stage, Mr. Mohit Kr. Shah as well as Mr. Rajiv Bahl
pray that a date of hearing before the Official Liquidator be fixed by
this Court. Consequently, with the consent of parties, appellants are
directed to appear before Md. Shakeel, Assistant Official Liquidator
on 25th April, 2011 at 2.30 p.m.
9. With the aforesaid observations, the two appeals stand
disposed of.
MANMOHAN,J
MARCH 03, 2011
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