Shahi Exports Pvt Ltd & Another vs Cmd Buildtech Pvt Ltd
2017 Latest Caselaw 6301 Del

$~C-25
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                             Date of decision: 09.11.2017
+      CO.PET. 468/2011
       SHAHI EXPORTS PVT LTD & ANOTHER         ..... Petitioner
                    Through   Ms.Neelima Tripathi and Ms.Gunjan
                              Singh, Advs.

                          versus

       CMD BUILDTECH PVT LTD                   ..... Respondent
                   Through   Dr.Shashwat     Bajpai,     Mr.Sharad
                             Agarwal and Ms.Nippun Sharma,
                             Advs. for the non-applicant No.1 and
                             2
                             Ms.Sangeeta Chandra, Adv. for OL

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)

Co.Appl. No.56/2015

1. Arguments had been heard on 16.05.2017 and 2.11.2017. The matter was kept today only to see if there is a possibility of a settlement as had been mooted by learned counsel appearing for the Ex-Directors of the respondent company. None is present for the Ex-Directors of the respondent company today. Hence, I dispose of the above applications.

2. This application is filed by the petitioners seeking withdrawal of Company Application No.165/2014 filed by the petitioners, for vacation of interim order dated 22.01.2014 and also modification and vacation of order

CO.PET.468/2011 Page 1 dated 10.7.2013 in CA No.2249/2011 to the extent that it relates to the Kundli project only.

3. This winding up petition was filed pursuant to a default by the respondent in the loan agreement dated 27.11.2007 which was executed and entered into between the petitioners and the respondent company. The petitioners financed an Inter Corporate Deposit (ICD) for an amount of Rs.8 crores bearing interest @13% per annum. In case of default the respondent was stated to be liable to pay the delayed interest @40% per annum to the petitioners. The respondent repaid a sum of Rs.2 crores leaving the balance unpaid. The petitioners on account of default of the respondent are claiming Rs.17,05,13,764/- alongwith future interest @ 40% per annum as was due on 15.10.2011.

4. There are certain facts regarding the respondent company which are also relevant. On 29.09.2006 a Joint Venture Agreement was entered between non-applicant No.1 Pardesi Developers & Infrastructure Private Limited and the respondent to develop and construct a real estate project at Kundli, namely, "Ushay Towers" on 14.5 acres of land. The land was vested in M/s.Himachal Tin Printers Private Limited, Shri Pankaj Narula and Smt.Sunita Narula. These three owners had given complete control of the land to the respondent. On 3.7.2009 three conveyance/sale deeds for 75% of the land were executed by the original owners, namely, Shri Pankaj Narula, M/s.Himachal Printers Private Limited and Smt.Sunita Narula in favour of non-applicant No.1. An MOU dated 4.7.2009 was also executed between the respondent and non-applicant No.1 whereby they divided the Ushay Towers. Five of the Towers were to go to the share of the respondent company while balance 12 Towers were to go to non-applicant No.1. The land underneath

CO.PET.468/2011 Page 2 the 17 towers was to remain undivided with non-applicant No.1 having 75% undivided share in the undivided land.

5. On 10.7.2013 in CA No.2249/2011 an order was passed by this court restraining the respondent company/ agent/ servants from dispossessing/alienating/ transferring or creating third party interest in any of the properties including its interest in the lands located at Kundli (Sonepat) and Yamuna Nagar which was given as a security to the petitioners or from creating third party interest in the Kundli property. On 18.09.2013 this court appointed the Official Liquidator attached to this court as the provisional Liquidator of the company.

6. On 22.1.2014 while dealing with CA No.165/2014 this court directed non-applicant No.1 and non-applicant No.2 CMD Pardesi Developers Private Limited to maintain status quo regarding the shareholding as well as their assets including any developmental rights in relation to the said property.

7. By the present application the petitioners/applicants submit that they have entered into a settlement with the non-applicant No.1, namely, Pardesi Developers and Infrastructure Private Limited. As per the agreement the petitioners have agreed to release and assign all rights and interest in respect of the Kundli property in favour of non-applicant No.1 and hence the petitioners/applicants seek liberty to withdraw CA No.165/2014 and seeks vacation of the interim orders passed. Similarly, partial vacation is sought of the interim order dated 10.07.2013 to the extent that it relates to the Kundli Project.

8. I have heard learned counsel for the parties. Ms.Neelima Tripathi, learned counsel appearing for the petitioners has submitted that her clients

CO.PET.468/2011 Page 3 have entered into a settlement and do not wish to further pursue the application or press the interim order as noted above. She further submits that the admitted position is that the land is owned 25% by the respondent company and 75% by non-applicant No.1 and hence, she submits that no prejudice would be caused to the parties as the official liquidator already has possession of five of the towers in question in Kundli, being the share of the respondent.

9. Learned counsel appearing for non-applicant No.1 and 2 have reiterated the above submissions, namely, that he owns 75% of the land and is owner of 12 of the towers. He submits that prior to the winding up order passed by this court on 3.7.2009 by registered conveyance/sale deeds his clients had attained rights in the said property. He has also undertaken that in case the present application is allowed, the non-applicant Nos.1 and 2 shall not sell or encroach upon any of the open areas in the project site and will also not effect sale of more than their share of the land.

10. Learned counsel appearing for the Official Liquidator (OL) has taken me through an affidavit filed by Dr.Ramesh Kumar, Assistant Official Liquidator, dated 9.3.2016 where it has been stated that pursuant to an additional affidavit filed by non-applicant No.1 the full facts have come to the knowledge of the OL. The OL took possession of five towers being Marina Tower, Crest Tower, Honda Bay Tower, Kochi Tower and Kept Down Tower and even deployed security for watch and ward purposes. Hence, it has been stated that the OL has been able to secure the assets of the respondent company in liquidation in the Kundli Project in terms of conveyance/sale deeds dated 3.7.2009 which is the last title documents

CO.PET.468/2011 Page 4 before filing of the winding up petition on 24.10.2011. Hence, 30% of the total project has been secured by the OL.

11. Learned counsel appearing for the Ex-Directors has, however, vehemently opposed the present application. He has repeatedly stressed that the respondent company was owner of 25% undivided share of the land and that any sale effected by the non-applicant No.1 or No.2 would damage the said rights of the respondent. It has also been submitted that if the entire project is sold as a single unit, it would fetch a better price and the company would also be revived. He has also expressed his apprehension that as per the settlement between the petitioners and non-applicant No.1, non-applicant No.1 will step into the shoes of the petitioners as a creditor and continue to pursue the draconian interest rate of 40% which the petitioners were claiming.

12. From a conspectus of the above, it follows that certain facts are not in dispute. The respondent company in liquidation owns 25% undivided share in the project site at Kundli. Five Towers out of the 17 towers belong to the respondent company and the balance 12 Towers belong to the non-applicant Nos.1 and 2. As far as the Official Liquidator is concerned the only asset of the respondent company in Kundli are the five Towers and 25% share of undivided land. Thus having secured 5 of the towers which are in possession of the OL where security has been deployed 30% of the value of the property is secured in possession of the OL.

In view of the above, no prejudice is caused to the respondent company in case the present application is allowed. I may also note that the non-applicants No.1 and 2 have given an undertaking to this court not to encroach upon or utilize the open spaces in the project site for any project

CO.PET.468/2011 Page 5 and development and will also not deal with the share of the respondent company. The said undertaking of the non-applicants No.1 and 2 is taken on record. The concerned Managing Director of the two companies will file an affidavit to that effect in the court record. On filing of the affidavit, the interim orders passed by this court on 22.1.2014 shall stand vacated. The interim order dated 10.07.2013 to the extent it relates to the Kundli project would also stand vacated. CA No.165/2014 will also stand dismissed as withdrawn. Of course this order does not permit sale of property which is in possession of the OL. Application is allowed on the above terms. CO.PET. 468/2011 List on 31.01.2018.

JAYANT NATH, J.

NOVEMBER 09, 2017/n




CO.PET.468/2011                                                         Page 6