Reserve Bank Of India vs M/S Jvg Finance Ltd.
2013 Latest Caselaw 5509 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Reserved on: 10th October, 2013
%                                       Date of decision: 28th November, 2013

+      CO.APPL.1818/2011 IN CO. PET. 265/1998

       RESERVE BANK OF INDIA                   ..... Petitioner
                    Through: Mr. Srinjoy Banerjee, Adv. for
                             RBI.
                    versus

       MS JVG FINANCE LTD.                                    ..... Respondent
                    Through:                Mr. Abhay Kumar and Mr.
                                            Tenzing Tsering, Advs. for
                                            applicant/Mr. Achutya Kr. Sharma
                                            Mr. Amit Goel with Mr. Kuldip
                                            Kalloo, AR of Auction Purchaser
                                            Mr Shailendra Singh and Mr.
                                            Yashpal Singh, Advs. for Mr.V.K.
                                            Sharma, Ex-Director
                                            Mr Rajiv Bahl, Adv. for official
                                            liquidator.

CORAM:
HON'BLE MR. JUSTICE R.V.EASWAR

                                   JUDGMENT

R. V. EASWAR, J.:

1. This is an application filed by one Achyut Kumar Sharma and the

following prayers have been made therein: -

"(a) Allow, entertain and taken on record the present

application of the applicant and implead the applicant as a necessary party in the present Company Petition No.265 of 1998;

(b) set aside the auction vide order dated 17.05.2006 passed by this Hon'ble Court in C.P. No.265 of 1998 for 16.9 acres of land out of the total land purchased by the applicant vide sale deed dated 22.04.1995, 24.04.1995 & 06.05.1995 executed in his favour in respect of property situated at village Konaghatta, Khasba Hobli, Doddaballapur Bangalore in regard to property with Regd. Nos.684/97, 686/97, 687/97, 685/97, 691/97, 688/97, 681/97, 683/97, 689/97, 690/97, 693/97, 694/97, 682/97, 692/97 and 695/97 sold to the auction purchaser M/s. Metro Nirvana and cancel the said auction and subsequent auction also;

(c) set aside the order dated 31.07.2006 passed by this Hon'ble Court in C.P. No.265 of 1998 it was directed by the Court that possession of 13.5 acres of land that belonged to the company be handed over to the auction purchaser namely M/s. Metro Nirvana;

(d) restore the properties above said property which was sold in auction vide above order dated 17.05.2006 and handed over to the auction purchaser vide order dated 31.07.2006 to the applicant herein over which the applicant have the lawful title and ownership;

(c) pass such other order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

2. The application has been filed in the following circumstances. M/s

JVG Finance Ltd, which is the company in liquidation and the respondent

in the company petition, was provisionally ordered to be wound up by

this Court on 05.06.1998; thereafter the final winding up order was

passed on 29.08.2003 on which date the Official Liquidator was

appointed as the liquidator of the company. Pursuant to a sale

proclamation, certain lands belonging to the company in liquidation,

situated at village Konaghatta, Kasba Bobli, Doddaballapur, near

Bangalore were sold through auction on 17.05.2006. The land was sold

to M/s. Metro Nirvana for the sum of Rs.2,05,00,000/-. The entire

amount was paid by the auction purchaser on 31.07.2006.

3. It is stated in the application that the land belongs to the applicant,

who claims to be the real and registered owner thereof, and that on

coming to know of the auction sale on 22.08.2006 through his counsel, he

approached this court and filed Company Application No.1315/2006 on

24.08.2006 praying for impleading him as a necessary party in the

company petition. In that application the applicant further contended that

he had purchased 21 acres of land out of which 16.9 acres were wrongly

sold to the auction purchaser on 17.05.2006. In support of the application

and the claim that the land were owned by him, the applicant produced,

along with the aforesaid application, the copies of the sale deeds dated

22.04.1995, 24.04.1995 and 06.05.1995 executed in his favour. It was

further claimed that the applicant purchased the aforesaid land with the

help and assistance of one C. M. Chopra, a broker. After the purchase of

the land, a general power of attorney (GPA) was executed by the

applicant in favour of the said C.M. Chopra and it was also duly

registered. Several supplementary or additional affidavits to the

application were also filed contending that the land in question had

wrongly been sold to the auction purchaser, that mutation of the land had

taken place in favour of the applicant and was also passed by the

competent authority in the State of Karnataka and that in these

circumstances the auction should be cancelled and the land be restored to

the applicant.

4. The Official Liquidator filed a reply in the aforesaid application,

objecting to the impleadment plea and questioning the bona fide and

authenticity of the claim of the applicant to be the owner of the land. It

was pointed out that the applicant did not present his credentials to the

satisfaction of this Court and that he was merely trying to take advantage

of the coincidence that his name and the name in the sale deeds were the

same. The Official Liquidator questioned the claim of the applicant that

he was the person in whose favour sale deeds were executed in the year

1995. It was further pointed out that since the land was sold under orders

of this court by public auction and the auction purchaser was also put in

possession, no purpose would be served in impleading the applicant in the

winding up proceedings. It was alleged that the applicant was merely

trying to delay the proceedings at the instance of vested interests.

5. In addition to the above broad submissions, the Official Liquidator

relied on the affidavit dated 21.11.1999 filed by one V. K. Sharma, the

ex-managing director of the company in liquidation, in which it was

affirmed that the lands in Bangalore which were put to sale belonged to

the company in liquidation. The affidavit further affirmed that the land

was held by the company in liquidation in the benami name of Achyut

Kumar Sharma, S/o Bharat Prasad Singh, R/o No.222, III Main, Jeevan

Kendra Layout Cambridge Road, Ulsoor, Bangalore-560008. The

Official Liquidator also pointed out that the title deeds disclosed that the

entire amount of sale consideration was paid by the applicant in cash and

that he failed to disclose the source of his funds. It was pointed out that

the payments to the sellers cannot be verified since they were not made

by cheques or drafts. It was further pointed out that the original title

deeds relating to the land were in the possession of V. K. Sharma who

submitted them before this Court and the claim of the applicant that he

had handed over the original title deeds to V. K. Sharma for some

verification sounded hollow, considering the fact that he did not take any

steps to get back the sale deeds from V. K. Sharma after verification,

which is not the normal conduct of a prudent person or an agriculturist

who always would like to secure his title to the land. The applicant

would appear to have claimed in the application that the General Power

of Attorney given to C.M. Chopra was cancelled on 18.12.2005. This

claim appears to have been made by the applicant when it was found that

C.M. Chopra was an employee of the company in liquidation and the

address in Cambridge Layout, Ulsoor, Bangalore shown in the title deeds

was in fact the residential address of C.M. Chopra. The Official

Liquidator took up the objection that the cancellation of the GPA had no

validity or sanctity in the eye of law, since it was done through an

unregistered document, whereas the GPA had been executed and

registered in favour of C.M. Chopra. For this and several other grounds

the application filed by the present applicant was opposed by the Official

Liquidator.

6. Mr. V. K. Sharma, the ex-director of the company in liquidation

also filed a reply to the application and vehemently opposed the same. It

was pointed out by him in the reply that if the applicant was the real

owner of the property, he would have raised objections even at the time

when the Official Liquidator took possession of the property, much prior

to the date of auction. It was pointed out that in the affidavit filed by V.

K. Sharma, it was stated that the property belonged to the company in

liquidation even though the sale deed was in the name of Achyut Kumar

Sharma. On 14.09.2005, V.K. Sharma made a statement in Court, in the

presence of the applicant, that the land was purchased out of the funds of

the company in liquidation and was so purchased in the name of the

applicant only as a nominee of the company. It was thus pointed out by

V. K. Sharma that even before the auction took place on 17.05.2006 this

Court was aware that the land belonged to the company in liquidation,

though standing in the name of the applicant. This was the reason why

the plea of the applicant for stay of the auction sale was rejected by this

Court. With regard to the claim of the applicant that he was an

agriculturist, V. K. Sharma disputed the same on the ground that there

was no proof or evidence in support of the claim, nor was there any proof

as to how the applicant could come into possession of such huge funds

for purchasing the land. V. K. Sharma also disputed the claim of the

applicant that the latter asked for return of the original documents

entrusted to him (V. K. Sharma) by the applicant for verification. For this

and several other reasons, the application filed by the applicant was

stoutly opposed by V. K. Sharma.

7. After considering the application, the replies, the rejoinder as well

as the arguments, this Court (Sudershan Kumar Misra, J.) passed an order

on 13.07.2010 in Company Application No.1315/2006 as follows: -

"This application has been moved by Mr. Achyut Kumar Sharma, praying that he be allowed to intervene in the matter and be impleaded as a party. The reliefs the applicant seeks are as follows:

"[i] allow/ permit the intervener herein to be impleaded as party and consequently thereof permit/ allow the intervener to make necessary submissions before this Hon'ble Court towards the final adjudication and decision in the above captioned matter pending before this Hon'ble Court, [ii] take the present application on record of this Hon'ble Court for the kind and appropriate consideration of this Hon'ble court;

[iii] grant an opportunity of hearing to the authorized counsel on behalf of the applicant/ intervener, to make necessary submission in the larger interest of justice and equity;....."

Counsel for the applicant has tried to support the aforesaid reliefs by alleging that some property belonging to the applicant was sold in a public auction by this Court without notice to his client. This submission is vehemently opposed by counsel for the auction purchaser and also by counsel for the Official Liquidator. I might notice that no substantive relief with regard to any property allegedly belonging to the applicant, which is supposed to have been sold by this Court in a public auction, has been prayed for. Nor has any restitution thereof been sought. In fact, even the particulars of the actual property stated to be belonging to the applicant, and sold erroneously at the public auction held on 17th May, 2006, have not been given in this application. Further, I might notice that the date of the auction mentioned in this application is 24th May, 2006. On that date, in fact, no auction took place. The auction which the applicant appears to be referring to is probably the one which took place on 17th May, 2006. Thereafter, it was open to the applicant to take any remedy that may have been available in law, but he does not seem to have pursued any such remedy.

Counsel for the applicant has cited no precedent where, under similar circumstances, any party can be impleaded in these proceedings under the Companies Act, 1956, and that too, at this stage. To my mind, this application is entirely devoid of merits and the same is dismissed with costs of Rs.11,000/- to be deposited in the account of the company (in liquidation) within two weeks from today.

SUDERSHAN KUMAR MISHRA July 13, 2010"

8. An appeal was filed against the aforesaid order before the Division

Bench in Company Appeal No.26/2010. This appeal was disposed of on

21.12.2010. The Division Bench permitted the appellant (applicant

herein) to withdraw the appeal and granted liberty to him to approach the

Company Court with a fresh application mentioning all necessary details

especially with regard to the property on which he claimed ownership.

9. It is pursuant to the liberty granted by the Division Bench as above,

that the applicant has filed the present application.

10. The learned counsel for the applicant reiterated the averments

made earlier in Company Application No.1315/2006 and the affidavits

filed in support of that application. He also drew my attention to the

report of the SFIO (Serious Frauds Investigating Office). He submitted

that the applicant had led ample evidence before the SFIO regarding his

sources for the purchase of the land in the year 1995 which was also

accepted by the SFIO and thus his ownership over the land stood proved.

He further contended that the report of the SFIO does not find anything

against the applicant on the money-trail.

11. The learned counsel for the auction purchaser (M/s. Metro

Nirwana) submitted that the report of the SFIO was against the applicant

and it is incomprehensible as to how the same can be said to be in favour

of the applicant. It was pointed out that when the provisional liquidator

was appointed on 05.06.1998 and when the auction took place on

17.05.2006 and possession was given to the auction purchaser on

21.08.2006, the applicant did not file any application claiming ownership

over the land. It was submitted that when the provisional liquidator took

possession of the land, the applicant, if his claim of ownership was true

and real, would have challenged the action of the provisional liquidator.

It is unacceptable that for a period of six years the applicant was unaware

that his land has been taken possession of by the provisional liquidator

and was the subject matter of the auction sale. It was vehemently

contended that the applications filed by Achyut Kumar Sharma was an

attempt to delay the proceedings at the behest of some vested interest. It

was pointed out that despite four additional affidavits filed by the

applicant in Company Application No.1315/2006 this Court was not

satisfied about the genuineness of the applicant's claim. No new fact, it

is submitted, has been brought out in the present application, which is

nothing but delaying tactics. The applicant, it is submitted, has not come

with clean hands to this Court. It was also brought to my notice by the

learned counsel for the auction purchaser that the present application was

filed on 16.08.2011 when the applicant came to know that the sale deed

was to be executed in favour of the auction purchaser under orders of this

Court passed on 10.05.2011, which re-enforced the contention that the

applicant was merely indulging in delaying tactics. It was also pointed

out that the details set-out in the form of a table in paragraph 12 of the

report of the SFIO completely tally with the details given in the General

Power of Attorney executed by the applicant in favour of C.M. Chopra,

which proves that the claim of the applicant is false and untenable. The

SFIO has also recorded in paragraph 20 of their report that the original

title deeds were given to V.K. Sharma. Further, the fact that the applicant

claimed to have purchased the properties in April/ May, 1995 and

immediately on 12.12.1995 executed a registered Power of Attorney in

favour of C.M. Chopra is tell-tale, and shows that the property was

purchased benami by the company in liquidation and the applicant was

not the real owner thereof.

12. The learned counsel for V. K. Sharma also addressed arguments

generally supporting the stand taken by the learned counsel for the

auction purchaser. No separate reply, however, was filed by V.K.

Sharma to the present application. The learned counsel drew my

attention to the affidavit dated 29.11.1999 filed by V.K. Sharma, which

was relied upon by the SFIO.

13. Mr. Rajiv Bahl, the learned counsel for the OL, while broadly

supporting the stand taken by the auction purchaser and V.K. Sharma

submitted that the approach of the applicant has been very casual. He

could not prove the source for the funds of about Rs.17 lakhs said to have

been paid by him for the purchase of the land. The income tax returns

filed by the applicant, relied upon by him before the SFIO, were for the

years later than the year in which the land was claimed to have been

purchased by him and were, therefore, not relevant. At the relevant time

i.e. when the GPA was executed in favour of C.M. Chopra, he was an

officer employed with the company in liquidation. This strengthens the

plea of the company that the land was purchased in benami name out of

the funds belonging to it. On the basis of these submissions, Mr. Rajiv

Bahl submitted that there was absolutely no merit in the application. He

prayed for dismissal of the same with heavy costs.

14. On a careful consideration of the rival contentions, I see no merit in

the application. There are several reasons for my conclusion. The first is

that a similar application in Company Application No.1315/2006 was

dismissed by a learned Single Judge of this Court vide order dated

13.07.2010 which has been quoted in full earlier. The present application

was filed pursuant to the liberty granted by the Division Bench in the

appeal filed against the order passed by the learned Single Judge. As

rightly pointed out on behalf of the auction purchaser, no new fact or

development which is crucial to the decision has been brought to my

notice, persuading me to hold that the applicant is the real owner of the

land. The only relevant or crucial document which has come on record

after the earlier order passed by the learned Single Judge in Company

Application No.1315/2006 is the report of the SFIO. I have carefully

gone through the report as well as the annexures thereto. By order dated

29.11.2012 this Court directed the SFIO to investigate the title to the

lands and the stand set up by the OL that the property was purchased out

of the funds of JVG Finance Ltd. (in liquidation). Pursuant to this

direction, the SFIO obtained copies of the record from the OL and issued

summons to both Achyut Kumar Sharma, the applicant herein, and V.K.

Sharma, Managing Director of the company in liquidation. V.K. Sharma

did not appear before the SFIO, but the applicant appeared and a

statement was recorded from him by the SFIO. He also placed certain

documents through letter dated 26.02.2013. The SFIO first issued

summons to 35 persons from whom the applicant claimed to have

purchased the lands. Ten persons responded to the summons by either

appearing before the SFIO or by sending replies. Out of five persons who

appeared before the SFIO, one of them (Munikalappa) refused to sign the

statement. Five persons out of 35 sent in their replies.

15. The SFIO thereafter went to Bangalore to record the statements of

all the 35 persons since they were all residents of Bangalore rural district.

Only 5 persons appeared at the camp office for recording their statements.

Their statements are annexed to the report of the SFIO.

16. The SFIO obtained the relevant documents from the Sub-Registrar

concerned. It also perused the balance sheets, bank statements and other

relevant records of the company in liquidation.

17. In an attempt to verify the income tax return stated to have been

filed by the applicant, a letter was written by the SFIO to the income tax

authorities but there was no response. The bank accounts of the

applicant, one from Allahabad Bank, Baddopur Branch, Pandarak, Patna

and the other from HDFC Bank, Exhibition Road, Patna were obtained by

the SFIO. It was seen that the account in Allahabad Bank was opened on

12.03.2008 on which the Kisan credit loan of Rs.3 lakhs was taken. The

account with HDFC Bank was opened on 16.01.2003. Both these dates

are much later than the dates on which the lands were stated to have been

acquired by the applicant. The SFIO has also found that the entire

payment of Rs.17,00,000/- for the purchase of the lands was made in the

year 1995-96 in cash. Therefore, the opening of the bank accounts

several years later or the filing of the income tax return for a later year

does not establish the source of the funds.

18. Another important finding of the SFIO in its report is that Achyut

Kumar Sharma, the applicant stayed in Bangalore for 3 to 4 months and

persuaded some agriculturists to sell the land to him. They sold the land

to him on the strength of a certificate obtained by him from the Sub-

Registrar in Bihar showing that he was an agriculturist. Achyut Kumar

Sharma in his statement before the SFIO, explained that since the law and

order situation at Bihar at the relevant time was not good, his family

suggested investing in lands elsewhere, which prompted him to buy the

lands near the Bangalore. He further explained that he purchased the land

out of the cash representing the savings lying at home. He also explained

that monies belonging to his father and brother were also utilised. He

was, however, categorical that he had not withdrawn any amount from

the bank account. After categorically stating so before the SFIO, he sent

a letter to the SFIO on 26.02.2013 enclosing affidavits from seven

persons from whom he claimed to have taken loans to purchase the lands.

The SFIO found that during the proceedings before it, Achyut Kumar

Sharma had not stated anything about any monies being borrowed by him

from friends and relatives for purchasing the lands. The affidavits were

also noticed to be in the same style. The applicant claimed to have taken

loans amounting to Rs.7,15,000/- from these seven persons. They were

summoned by the SFIO but none of them appeared. Five of them replied

giving excuses for not appearing. All of them stated that they did give a

friendly loan to the applicant. The SFIO, however, observed that from a

plain reading of the letters, it appeared to them that the replies were

written by the same person. Thus, the identity and creditworthiness of

these persons have not been established by the applicant. They were not

even mentioned before the SFIO in the course of the proceedings before

it. Clearly, the story trotted out by the applicant that he took friendly

loans from seven persons in Bihar was an afterthought. In addition to this

the SFIO has also remarked that all the letters received from the seven

persons appeared to have been written by the same person. Thus, there is

no evidence to show the nature and source of the monies used for the

purchase of the lands by Achyut Kumar Sharma, the applicant.

19. It is also very important to note that Achyut Kumar Sharma himself

admitted before the SFIO that he gave the original title deeds relating to

the lands to V.K. Sharma within a few months after he purchased the

lands. He stated that he knew V.K. Sharma as he had meet him in an

investor meet. He claimed to have made a deposit of Rs.75,000/- in the

JVG Group, but could not produce any evidence in support of this claim

before the SFIO. As an explanation for giving the address of the guest

house of the JVG Group in Bangalore as his local address in the sale

deeds, Achyut Kumar Sharma stated before the SFIO that when he met

V.K. Sharma in the investor meet, he told him that he needed a local

address to purchase the land and V.K. Sharma readily offered the address

of the guest house of the JVG Group. According to Achyut Kumar

Sharma's statement on oath before the SFIO, V.K. Sharma had taken the

original title deeds of the lands for verification and that he had assured

that he would pay a good price for the lands. In other words, Achyut

Kumar Sharma had stated before the SFIO that he had left the original

title deeds with V.K. Sharma, the Managing Director of the JVG Group

of companies, on the latter's assurance to buy the lands. However, when

asked whether he got back the title deeds when the lands could not be

sold to V.K. Sharma, he has stated that he tried to obtain the documents

back but he could not contact V.K. Sharma. This is clearly unbelievable.

One is asked to believe that Achyut Kumar Sharma handed over the title

documents to V.K. Sharma but simply omitted to get them back.

Undisputedly the title deeds were with V.K. Sharma who handed them

over to this Court. There is no reason why the title deeds to the lands

should be in the possession of V.K. Sharma, if Achyut Kumar Sharma is

the real owner of the lands as claimed by him. It should also be noted

that in the affidavit submitted by V.K. Sharma before this Court on

29.11.1999 giving details of the assets of JVG Finance Ltd., the lands in

question were included as assets of the company. In the said affidavit, it

was also stated by him that the lands were purchased by JVG Finance

Ltd., the company in liquidation, from its own funds but in the name of

one Achyut Kumar Sharma under registered sale deeds dated 22.04.1995,

24.04.1995 and 06.05.1995; in all there were 15 sale deeds. The

possession of the sale deeds with V.K. Sharma, instead of with the

applicant who claims ownership over the lands, read with his affidavit

dated 29.11.1999 submitted before this Court, clearly shows that the

lands belonged to the company in liquidation and not to Achyut Kumar

Sharma. V.K. Sharma has also stated in the affidavit that the funds came

out of the company in liquidation, of which he was the managing director.

It is also relevant to note that in the sale deeds the residential address of

Achyut Kumar Sharma shown was in fact the address of the guest house

of the JVG Group of companies in Bangalore. Coupled with this is the

further fact - and a very crucial fact at that - that Achyut Kumar Sharma

had executed a general power of attorney in favour of C.M. Chopra who

was an officer in the employment of the JVG Group of companies. This

is a registered general power of attorney which was later sought to be

revoked by an unregistered document. These facts, taken together with

the fact that Achyut Kumar Sharma was wholly unable to prove the

nature and source of the monies utilised for purchasing the land, can lead

to the only conclusion that the lands in question actually belonged to the

company in liquidation. The applicant, at best, was only the person in

whose name the lands were acquired. He was merely the nominal owner

of the lands; the real owner of the lands was the company in liquidation.

20. The SFIO has mentioned in paragraph 26 of its report that there

was no increase in the value of land shown as stock-in-hand in the

balance sheets of JVG Finance Ltd. for the years 1994-95, 1995-96 and

1996-97. Even the prospectus issued by the company for the public issue

in 1997 did not mention any land at Bangalore as the company's asset or

stock-in-trade. It is, however, recorded in the same paragraph that in the

brochure published with regard to the JVG Hills Project at Hyderabad,

the land at Bangalore is mentioned.

21. On the basis of the aforesaid findings of the SFIO, I have no

hesitation in coming to the conclusion that the lands belonged to the

company in liquidation but were registered in the benami name. I am,

however, unable to appreciate as to how the SFIO concluded in paragraph

27 of the report that it was not clear whether Achyut Kumar Sharma

purchased the land for himself or on behalf of JVG or if he sold it to JVG

after purchasing it. All its findings are based on relevant material and

they point only to the conclusion that the funds belonging to the company

were utilised for purchasing the lands in the name of the applicant. This

was stated by V.K. Sharma in his affidavit dated 29.11.1999 submitted to

this Court to which reference has been made by the SFIO itself in

paragraph 4(a) as well as paragraph 25 of the report. The title deeds to

the land were admittedly handed over to V.K. Sharma by the applicant

and admittedly these title deeds were not returned to the applicant. It is

difficult to believe that the applicant, had he been the real owner of the

lands, would have left the documents with V.K. Sharma and forgotten to

take it back. If he had been the real owner of the lands, he would have

certainly taken action against V.K. Sharma for not returning the

documents. Moreover, Achyut Kumar Sharma could not establish the

nature and source of the monies which he allegedly utilised to acquire the

lands. The changing stands and inability to adduce credible evidence

regarding the source of the monies and the inability to prove the identity,

creditworthiness of the seven persons from whom he claimed to have

taken friendly loans and the inability to prove the genuineness of the

transactions were sufficient to persuade the SFIO to hold that the Achyut

Kumar Sharma could not have purchased the lands out of his own funds

and for his own benefit. In the light of the affidavit of V.K. Sharma,

which was also before the SFIO, it should have been clear that the

consideration for the purchase of the lands could have flowed only from

the company in liquidation. The entire transaction was found to be in

cash and there were no banking transactions. All these facts taken

cumulatively should have persuaded the SFIO to hold that the company

in liquidation was the real owner of the lands and the claim made by

Achyut Kumar Sharma was hollow.

22. In addition to the above I find merit in the contention of the learned

counsel for the auction purchaser that the applicant did not challenge the

action of the provisional liquidator, who took possession of the lands and

also put it to auction, for a period of six years. Moreover, the present

application was filed on 16.08.2011 when the applicant came to know

that the sale deed was about to be executed in favour of the auction

purchaser pursuant to the orders of this Court passed on 10.05.2011; this

actually reinforces the contention that the applicant is merely indulging in

delaying tactics.

23. Taking the entire conspectus of the facts and the conduct of the

applicant, it seems to me that the applicant has been indulging in delaying

tactics and trying to thwart the proceedings before the company court by

taking frivolous and repetitive objections. His earlier application in

Company Application No.1315/2006 was dismissed against which he

filed an appeal before the Division Bench. He simply withdrew the

appeal but obtained liberty to approach the company court again with a

fresh application mentioning all necessary details with regard to the

lands. In the fresh application, which is the present one, there is nothing

of vital importance which was not submitted in the affidavits and the

additional affidavits filed in support of the earlier Company Application

No.1315/2006 which was dismissed by the learned Single Judge with

costs of Rs.11,000/-. In the course of the arguments before me, no vital

fact which was not brought to the notice of this Court earlier, was brought

to my notice. The only new document is the report of the SFIO which

was claimed to be in favour of the applicant. I have already held that

there is no reason to hold that the report of the SFIO is in favour of the

applicant. In these circumstances, I have no option but to accept the plea

taken by Mr. Rajiv Bahl, the learned counsel for the OL that the present

application should be dismissed with heavy costs.

24. For the reasons stated above, I dismiss the present application filed

by Achyut Kumar Sharma with costs of Rs.25,000/- to be deposited in the

account of the company in liquidation within 2 weeks from today.

(R.V. EASWAR) JUDGE NOVEMBER 28, 2013 hs