Rajni Anand vs Cosmic Structures Ltd
2019 Latest Caselaw 576 Del

$~CP-16
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                           Date of decision: 30.01.2019


+     CO.PET. 152/2016

      RAJNI ANAND                                  ..... Petitioner
                           Through    petitioner in person
                  versus
      COSMIC STRUCTURES LTD                        ..... Respondent
                           Through      Mr.Prashant Mendiratta, Adv. for
                           applicant/Som Resorts in CA 631/2017
                           Mr.Osama Suhail, Mr.Samara Suhail, Ms.Bharti
                           Tyagi, Mr.Animsh Khanna and Mr.Mohit Thareja,
                           Advs. for the applicant in CA 521/2016
                           Mr.Shambhu Chaturvedi, Adv. for Mr.Nishant
                           Mutreja and Mr.Sushant Mutreja/Ex.Directors
                           alongwith Mr.Nishant Mutreja and Mr.Sushant
                           Mutreja produced from JC
                           Mr.Gajendra Giri, Adv. for applicant in
                           CA1099/2017, 1283/2018
                           Mr.Arunendra Singh, Adv. with Mr.Ashish Harita,
                           Asst.Director for SFIO
                           Mr.D.Bhattacharya, Adv. for OL

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

CA Nos.596/2017,759/2017, 1761/2017, 232/2018, 459/2018, 586/2018, & 772/2018 These applications have become infructuous and stand disposed of.

Co.Pet.152/2016                                                       Page 1
 CA 631/2017

1. This application is filed by Som Resorts Private Limited for desealing of their property situated at Plot No. 9, Sector-9, Vasundhara, Ghaziabad, U.P. The case of the applicant is that they are the owners of the plot measuring 1243.31 sq.meter allotted by Uttar Pradesh Development Board being Plot No.ML-9/1, Vasundhara, Ghaziabad, U.P.

2. I have heard this application earlier in detail. On 18.12.2018 I had passed the following order:-

CA 631/2017

1. This application is filed by Som Resorts Pvt. Ltd. for de- sealing of their property situated at ML-9/1, Vasundhara, Ghaziabad, U.P. The case of the applicant is that they are the owners of the plot measuring 1243.31 sq. metrs. allotted by U.P. Housing Development Board.

2. Learned counsel for the applicant has pleaded that the applicant Company had entered into a agreement with the respondent Company on 10.10.2013 which only gave the respondent company some limited marketing rights and no more.

3. It is pleaded that the documents that were executed with the flat buyers were normally a tripartite agreement. The consideration was mostly collected by the applicant. It is further pleaded that though there may be some investors who had paid money to the respondent Company for booking of the flats in the particular project but it is pleaded that the applicant would also take care of the said investors.

4. This application has been vehemently opposed by the petitioner and by Mr.Rajeev Garg. Mr.Rajeev Garg submits that he has invested Rs.27 lakhs with the respondent Company and with the applicant Company. He submits that there are common directors in the two companies. Hence, the respondent company and the applicant Company are co-related to each other. Hence, he submits that this application should not be allowed.

5. The petitioner who is appearing in person has stated that

Co.Pet.152/2016 Page 2 the original title deeds of the land itself are lying with the respondent Company. She has also pointed out that an FIR was registered being FIR No. 76/2017 which was filed by the applicant Company stating that the title deeds of the land in question are lying with the ex-directors of the respondent. Hence, she submits that the title of the applicant is itself doubtful.

6. Learned counsel for the ex-directors is supporting the application and has submitted that the they have no objection to the application.

7. Learned counsel for the OL has filed its report being OLR NO. 159/2018. The report supports the applicant.

8. I may look at the report filed by the OL in this regard. Relevant part of the report states is as follows:-

"2. That Report had already been filed vide OLR No. 141/2017 on 10.10.2017 that outsets the facts that the ownership of the subject property on the land allotted by UP Housing Development Board being Plot No. ML- 9/1, Vasundhara Ghaziabad, U.P. admeasuring 1243.31 Sq. Metrs. Had been checked with the Sub-Registrar-VI Ghaziabad vide Letter from this office dated 05.09.2017 for which reply of the concerned Sub-Registrar came on 08.09.2017 that confirmed the ownership in favour of M/s. Som Resorts Pvt. Ltd.

3. That further in compliance of the orders dated 13.12.2017 and 23.02.2018 of this Hon‟ble Court, Official Liquidator carried out appropriate investigation in regard to the arrangement that existed between the Company (in Liqn.) and M/s. Som Resorts Pvt. Ltd. on the basis of the documents/records namely, (i) Memorandum of Understanding true copy of which is annexed herewith as Annexure-„A‟ (ii) Bank Statements, true copy of which is annexed herewith as Annexure-„B‟ (iii) Balance Sheets, true copy of which is annexed herewith as Annexure-„C‟, (iv) Ledger details of the Investors, true copy of which is annexed herewith as Annexure-„D‟ and (v) Additional Affidavit dated 22.02.2018 of Mr. Anuj Gaur on behalf of M/s. Som

Co.Pet.152/2016 Page 3 Resorts Pvt. Ltd., true copy of which is annexed herewith as Annexure-„E‟.‟

4. That, the aforesaid documents reveal that there existed a Memorandum of Understanding dated 10.10.2013 between the Company (in Liqn.) and M/s. Som Resorts Pvt. Ltd. where under M/s. Som Resorts Pvt. Ltd. was to develop and construct a residential project called „Casa Italia‟ on the aforesaid land. The Company (in Liqn.) had to carry out the sale and marketing activities in respect of the said project on behalf of the M/s. Som Resorts Pvt. Ltd. and in this regard the Company (in Liqn.) submitted there willingness to provide the services on the terms and conditions mentioned in the said Memorandum of Understanding.

5. That, it transpires that the Company (in Liqn.) was having no right, title, or interest in the said project and land of M/s. Som Resorts Pvt. Ltd. and inventory lying inside the said premises belongs exclusively to M/s/. Som Resorts Pvt. Ltd. and the Company (in Liqn.) was having contract for sale and marketing activities only.

6. That company (in Liqn.) was supposed to book/felicitate sale/lease/sub-lease of spaces in the said project by only using application forms provided by M/s. Som Resorts Pvt. Ltd. Also, all persons who sought allotment of spaces shall apply in Application format decided by M/s. Som Resorts Pvt. Ltd. It was also mentioned that company (in Liqn.) shall receive payments from intending buyers/lessees/sub-lessees only through cheque in the name of "M/s. Som Resorts Pvt. Ltd." payable at New Delhi or any other as may be specified by M/s. Som Resorts Pvt. Ltd in writing. The company (in Liqn.) was bound to receive all the applications forms and cheques in the office of M/s. Som Resorts Pvt. Ltd. only, and was to then forward the same to M/s. Som Resorts Pvt. Ltd.

7. That in return of the services, the subject company (in Liqn.) was entitled to a fee @ 10% of the receivables of

Co.Pet.152/2016 Page 4 the project, for which services were rendered by the company (in Liqn.).

xxx

9. During the preliminary scrutiny of the Bank Statements of M/s. Som Resorts Pvt. Ltd. it was observed that the amount of Rs.1,45,03,185/- had been transferred by the company (in Liqn.) to M/s. Som Resorts Pvt. Ltd. from and between 26.11.2013 to 19.03.2016. However, admittedly, M/s Som Resorts Pvt. Ltd. is yet to tender the agreed fee (as explained in foregoing para) to the company (in Liqn.). As per the preliminary examination by the Official Liquidator's office, M/s. Som Resorts Pvt. Ltd. is admittedly liable to deposit Rs.14,50,318.50/- under the aforesaid Memorandum of Understanding and Additional Affidavit. It is further submitted that the Official Liquidator is yet to cross-verify the documents supplied by M/s. Som Resorts Pvt. Ltd., in view of non-initiation of work by the appointed Chartered Accountant, and hence, the views of the Official Liquidator presented herein are only preliminary."

9. Hence, learned counsel for the OL submits that the said applicant should deposit a sum of Rs. 14,50,318.50/- being the commission payable to the respondent Company for its services rendered by the respondent. In addition, he pleads that a sum of Rs.10 lakhs approximately has been spent towards security. He submits that this payment should by the applicant.

10. Though it has been vehemently submitted by some of the parties appearing in court that there is a co-relation between the applicant and the respondent Company but none of them has been able to given any coherent proof or fact which would demonstrate this allegation. In fact, earlier also based on this allegation, this court on 03.07.2018 noted that the SFIO had been appointed on 29.05.2018. This application on the request of the objector was deferred to await the report of the SFIO.

11. Considerable time has since lapsed. SFIO has in the meantime filed its preliminary report. The preliminary report is in a sealed cover. To enable this court to pursue the preliminary

Co.Pet.152/2016 Page 5 report lying in a sealed cover, list on 19.12.2018.

3. The matter was adjourned to enable the court to peruse the preliminary report filed by the SFIO. On 19.12.2018 this court had noted that before passing further orders in this application it would be appropriate that notice be issued to SFIO. On 14.1.2019 learned counsel for SFIO had sought two weeks‟ time to file an interim report on the aspect regarding the relationship between the respondent company and Som Reosrts Private Limited. The SFIO has filed the interim report regarding the said relationship in court today, The report reads as follows:-

"On the basis of above findings, it is evident that land on which "Casa Italia" is being developed has been with "SRPL" since 14.7.2004 and even financial statements of SRPL also reflect so. One of the Director of Som Resort Pvt. Ltd. (since 01.07.2013). He is holding thirty percent (30%) of shareholding in the company. Further, at initial stage, investors associated with Casa Italia Social Welfare Association were unaware about the fact that actual ownership of project was with SRPL. At the time of making investment, they were under the impression that it was a project of "CSL". Investigation also revealed that amount of Rs.1,45,03,185.00 received in the bank account No.3311367206 of "SRPL" from the account of "CSL" maintained with Kotak Mahindra Bank. Investigation also revealed that no payment has been made to "CSL" toawards fee/commission for sale/marketing of units of "Casa Italia" as per agreement dated 10.10.2013 entered between SRPL & CSL. Further, during investigation, Sh.Anuj Gaur, director of "SRPL" failed to produce advertisement brochures or any document relating to features, cost and specifications of units of the project given to buyers of "Casa Italia".

4. It is clear from a perusal of the report of the SFIO and also of the Official Liquidator that the property in question on which the project Casa

Co.Pet.152/2016 Page 6 Italia is being developed has been bought by Som Resorts Private Limited. There is one common Director of Som Resorts Private Limited and the respondent company, namely, Mr.Sandeep Pahwa. Investigations have also revealed that a sum of Rs.1,45,03,185/- was received by Som Resorts Private Limited from the respondent company. The respondent company has received no payments from Som Resorts Private Limited as commission for sales/marketing unit of Casa Italia.

5. The Official Liquidator has in his report OLR 159/2018 noted that the documents placed reveal that there exists an Memorandum of Understanding dated 10.10.2013 between the respondent company and Som Resorts Private Limited wherein Som Resorts Private Limited was to develop and construct a residential project called "Casa Italia" on the aforesaid land. The respondent company had to carry out sale and marketing activities in respect of the said project on behalf of Som Resorts Private Limited. It is pursuant to sale of certain space that the respondent company has transferred the said sum of Rs.1,45,03,185/- to Som Resorts Private Limited. The agreed fees payable to the respondent company from Som Resorts Private Limited for the work done would be 10% of the amount i.e. Rs.14,50,318.50.

6. As already noted above, none of the learned counsel appearing for any of the parties have been able to show in any manner that the actual picture existing between the respondent company and Som Resorts Private Limited is different than what has been stated by the Official Liquidator in the report and by the SFIO. Merely because one of the Director of the respondent company and the Som Resorts Pvt. Ltd. is common and there is an MOU between the two companies cannot imply that property does not belong to Som Resorts Pvt. Ltd.

Co.Pet.152/2016 Page 7

7. In view of the above, I allow the present application. The Official Liquidator will deseal the aforesaid property and hand over possession to Som Resorts Pvt. Ltd. subject to the following:-

(i) Som Resorts Private Limited would pay to the Official Liquidator the pending commission of Rs.14,50,318.50 of the respondent company within six weeks.

(ii) As agreed Som Resorts Private Limited would also refund to Mr.Rajiv Garg the sum of Rs.27 lacs now with simple interest @ 9% per annum within six weeks.

(iii) Som Resorts Private Limited shall also pay the expenses paid for the security deployed at the site of Som Resorts Private Limited. The Official Liquidator will produce full bills giving full details of the payments made to the security agencies including the break up within two weeks. The bills will be paid within one week thereafter.

(iv) On receipt of payment the OL shall hand over possession of the land to the AR of Som Resorts Private Limited. Application stands disposed of.

The report of the SFIO be sent back to the Registry and be kept in a sealed cover.

Co.Pet.152/2016 The OL will take steps to evaluate the immovable properties and other assets of the respondent company through an Authorised Valuer.

Needful be done within two months from today.

Mr.Sushant Mutreja and Mr.Nishant Shekhar Mutreja have

Co.Pet.152/2016 Page 8 been produced from Judicial Custody. They submit they will also endeavour to file a report to the best manner in which the respondent company can be revived. They may take steps accordingly.

List on 28.2.2019 i.e. the date already fixed. Let Mr.Sushant Mutreja and Mr.Nishant Shekhar Mutreja be produced on the next date of hearing also by Superintendent, Tihar Jail.

                                               JAYANT NATH, J
      JANUARY 30, 2019
      n




Co.Pet.152/2016                                                      Page 9