Delhi High Court
Surinder Singh Marwah & Anr. vs Aerens Entertainment Zone ... on 21 February, 2019
$~CP-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 21.02.2019
+ CO.PET. 482/2009
SURINDER SINGH MARWAH & ANR. ..... Petitioners
Through Mr. Vivek Kohli, Ms.Prerna Kohli,
Mr. Mudit Gupta and Ms. Yeshi Rinchhen, Advs.
versus
AERENS ENTERTAINMENT ZONE LIMITED..... Respondent
Through Mr. Siddharth Bhatli and Ms.Lashita
Dhingra, Advs. for the respondent.
Mr. Akhil Sibal, Sr. Adv. with Mr.Jatin Sehgal,
Ms.Devna Arora, Mr.Ashish Garg and Ms.Shriya
Misra, Advs. for the applicant in CA No.
1277/2018
Mr.Neeraj, Adv. for the applicants in CA Nos.
2917/2016, 3196/2016, 3198/2016, 3200/2016,
3199/2019.
Mr.Aman Nandrajog, Adv. for Manasvi Securities
Services.
Mr.Suresh Dobhal and Mr.Saaransh Parashar,
Advs. for Phoenix ARC Pvt. Ltd.
Mr.Kunal Sharma, Adv. for the OL.
Mr. Abhinav Garg, Adv. for the applicant in CA
No. 118/2017
Mr.Sahil Monga, Adv. for CA N. 8/2019.
Mr.Jayant Mehta and Mr.Gursat Singh, Advs. for
the applicant in CA No. 1279/2018
Mr.Shivi Sanyan, Mr.Jappanpreet Hora, Mr.Praval
Arora, Advs. for Energee in OLR 288/2018 and in
CA No. 122/2017 & 1716/2016
CO. PET. 482/2009 Page 1 of 8
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
OLR 250/2016
Report is taken on record and stands disposed of.
OLR 288/2018
By this report, the Official Liquidator seeks a direction that Phoenix
ARC Private Limited and Energy Venture Reality (P) Ltd. should share the
security expenses on pro-rata basis incurred by the Official Liquidator of the
property situated in Ludhiana.
Learned counsel for Phoenix ARC Private Limited has entered
appearance and states that he will seek instructions.
Issue notice to Energy Ventures Reality Pvt. Ltd returnable for
15.05.2019.
CA No. 118/2019 (exemption)
Allowed subject to just exceptions.
CA No. 117/2019
In view of the averments made in the application, the same is allowed.
The delay in filing the affidavit is condoned.
CA No. 788/2017
This application is filed by the petitioners seeking directions to SFIO
or any other appropriate investigation agency to investigate into the affairs
of the respondent Company. Inquiries are also sought into the conduct of
Dr.Rajesh Aeren, the Managing Director of the respondent company and
declaration is sought that Dr. Rajesh Aeren is personally liable for the
fraudulent conduct in the business of the respondent company.
Learned counsel appearing for Dr.Rajesh Aeren seeks some time to
file additional documents in support of his reply. He may do the needful
within four weeks.
List on 15.05.2019.
CA Nos. 1277/2018, 1278/2018 and 1279/2018
1. These applications are filed seeking vacation of the interim orders
passed by this court dated 11.07.2018 and 16.08.2018 restraining transfer,
selling or alienating of the properties purchased by Aeren R Mallz Pvt. Ltd.,
Aeren R Township Pvt. Ltd., Yashraj B.uildcon Pvt. Ltd., Yashvardhan
Infrastructure Developers Pvt. Ltd., Aeren R Buildcon Pvt. Ltd. and PMC
Entertainment Pvt. Ltd. (name changed to Fortune R Buildco Developers
Pvt. Ltd.) in village Bonkar Dogran, Ludhiana.
2. On 11.07.2018 and 16.08.2018, learned counsel for the
petitioners/applicants had taken the court through the chargesheet filed by
the police against Dr.Rajesh Aeren and other directors of the respondent
Company to contend that the properties have been purchased from the funds
of the respondent Company in the name of the sister concerns, namely,
(i)Yashvardhan Infrastructure Developers Pvt. Ltd, (ii) Aeren R.Buildcon
Pvt. Ltd., (iii) Aeren R.Township Pvt. Ltd., (iv) PMC Entertainment Pvt.
Ltd., (v) Aeren R.Mallz Private Limited and (vi) Yashraj Buildcon Private
Limited.
3. Based on the above allegation, this court on 11.07.2018 had passed an
interim order restraining the aforenoted companies from transferring, selling
or alienating the properties in question till further orders. On 16.08.2018, a
typographical error in the description of the companies was also corrected.
4. Pursuant to the above order, the two applications have been filed
seeking vacation of the interim orders passed by this court on 11.07.2018
read with order dated 16.08.2018.
5. I have heard learned counsel for the parties.
6. Learned senior counsel appearing for the applicant in C.A.
No.1277/2018 has submitted that a perusal of the charge-sheet would show
that there is no allegation whatsoever of any funds having been diverted
from the respondent company to the sister concerns for the purchase of the
properties in question. It is pleaded that these properties were purchased way
back in 2008. Subsequently, on 31.05.2014, the applicant entered into a
Development Management Agreement with the said companies to develop
the lands in question. An investment of above Rs. 50crores has been made
by the said applicant for the development of the properties.
7. On 11.12.2018 this court had while hearing this application directed
the applicant to file an affidavit with details of the development agreement
dated 31.05.2014 and all consequential steps taken. The applicant has filed
the necessary affidavit.
8. In the said affidavit, the applicant states that the applicant entered into
a Development Management Agreement dated 31.05.2014 and Supplement
Agreements dated 30.10.2014 and 29.12.2014 with six consortium
companies for exclusive development rights of 115 acres of land. It is
further stated that over a period of time, pursuant to various agreements, the
applicant has invested approximately Rs. 50 crores in the development and
acquisition of the interest in the properties in question inclusive of Rs.29.74
crores towards business deposit for the project in question.
9. Various documents regarding the project have been placed on record
including permission for change of land use and other approval including
license to develop, etc. It is also stated that pursuant to Development
Management Agreement dated 31.05.2014, the applicant was delivered
vacant and peaceful possession of the 11 properties in question. It is also
stated that the interest and rights of the applicant under the Agreement dated
31.05.2014 have been duly secured by equitable mortgage of the properties
belonging to the Consortium Companies. The equitable mortgage is duly
notified with the Registrar of Companies and the appropriate forms have
been filed with the Registrar of Companies, NCT of Delhi vide Certificate of
Registration dated 24.07.2014 issued by the Registrar of Companies.
10. Based on the above, it has been argued that the there is no allegation
of any funds having being used from the respondent Company to buy the
lands in question. It is pleaded that the interim orders passed by this court on
11.07.2018 and 16.08.2018 be accordingly vacated.
11. Learned counsel appearing for PMC Entertainment Pvt. Ltd. now
know as Fortune R. Buildco. Pvt. Ltd. states that they have filed an
application supported by an affidavit being CA No. 1279/2018 stating that
no money has flown from the respondent company to the applicant company
for purchase of the properties in question. A similar application being CA
No. 1277/2018 is also filed by Developer Group India Pvt. Ltd.
12. A perusal of the charge-sheet would show that the only allegation
therein is as follows:-
"During the course of investigation the certified copies of the sale
deed of the land. purchased by different companies of Rajesh
Aeren were collected and it was revealed that around Rs.70 crores
approximate was spent (as per circle rate) to purchase these
properties from 15.02.2008 to 31.03.2008 and at the same time the
alleged company received around Rs.175 crores from Mondon
Investment Ltd. The details of the properties are as under:-
S. Area of land Place Consideration Party Name Date of
No purchase
1 131 Karnal Vill. Rs.8,24,06,275 Yashvardan 22.02.2008
17 Bonkar, Infrastructure
marla/16.48 Dogra, Developers Pvt.
acres Ludhiana Ltd. (Citi Bank
A/c No.
0342546005)
2 126 Kanals -do- Rs.7,87,50,000 Aeren R 22.02.2008
(15.75 acre) Buildcon Pvt.
Ltd.
3 48 kanals Rs.3,00,00,000 22.02.2008
4 -do- Rs.5,34,37,530 Aeren R
85 Kanals Township Pvt.
10 Marlas (Citi Bank A/c
(16.68 acre) No.034171001
5 50 Kanals Rs.3,17,50,000 PMC 08.02.2008
6 16 Marlas Rs.4,71,25,065 Entertainment 08.02.2008
(15.775 -do- Pvt. Ltd.
acre)
75Karnals 8
Marlas
7 117 Kanals -do- Rs.7,35,93,750 09.04.2008
15 Marlas Aeren R Mallz 09.04.2008
(14 Acres) Pvt. Ltd.
8 16 Kanals -do- Rs.1,00,00,000
(2 acre)
9. 12 Kanals -do- Rs.75,00,000 Yashraj 1.12.2008
(1 acre 4 Buildcon Pvt.
Kanals) Ltd.
10 9 Acre 6 -do- -do- 09.04.2008
Kanals ----
11 2 Acre 7 -do- -do- 09.04.2008
Kanals ----
During the course of investigation the land Purchased in the different
group companies/sister concern of accused Rajesh J Aeren was put under
embargo by issuing the notice Sub-Registrar Ludhiana with the request that
the above properties may not be allowed to transfer, sale, mortgage etc."
13. Clearly, other than the allegation that the properties have been
purchased by different companies who perhaps were the sister concerns of
the respondent, there is no other allegation in the charge-sheet which states
that the funds have flown from the respondent Company for the purchase of
the said properties.
14. Learned counsel for the OL has clarified that presently, no Chartered
Account has looked into the accounts of the respondent company and this
aspect has to be gone into at a later stage.
15. Keeping in view the above, it is clear that there are no allegations
stated by the police who has filed the necessary charge-sheet against the
accused Dr.Rajesh Aeren and Ms.Sapna Aeren about flow of funds of the
respondent company to the sister concern/companies for purchase of the
land in question.
16. In view of the above, in my opinion, the interim order passed by this
court dated 11.07.2018 read with the order dated 16.08.2018 cannot
continue any further. I vacate the said interim order. However, the OL will
carry out audit of the accounts of the respondent company to look into the
allegations which are subject matter of CA No. 788/2017.
17. Ellahi Goel and Co. Chartered Accountant are appointed as the
Chartered Accountant. His fee is fixed at Rs. 1 lakh plus out of pocket
expenses to be paid from the Common Pool Fund subject to adjustment at a
later stage.
18. In case anything contrary is discovered in the course of this audit, the
OL is free to file an appropriate application with regard to these properties.
19. CA Nos. 1277/2018, 1278/2018 & 1279/2018 stand disposed of.
CA No. 1552/2017
By this application, the applicant seeks permission to continue with
the arbitration proceedings pending before the learned Arbitrator.
Learned counsel for the OL points out that presently there no known
assets of the respondent company and there are various litigations pending
against the respondent company. It would be an exercise in futility to allow
the present application and to let the applicant continue with the arbitration
proceedings.
He submits it would be appropriate, if the applicant were to file its
claim before the OL who will adjudicate on the claim.
Keeping in view the averment of the learned counsel for the OL, let
the applicant file its claim before the OL within six weeks from today. The
OL will deal with the same as per law.
The application stands disposed of.
CA No. 8/2019
In view of the above orders, the application stands disposed of.
JAYANT NATH, J
FEBRUARY 21, 2019
rb
Corrected and
released on 13.03.2019
