Kerala High Court
S.R.Kalyanakrishnan vs N.Vijayakumar on 19 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
(Original Jurisdiction)
In the matter of the Companies Act, 1956
and
In the matter of Commercial Hire Purchase (India) Ltd.
Co.Appl. No.198/2019 in Co.Pet. No.42/2009
Before
The Honourable Mr.Justice M.A.ABDUL HAKHIM
th
Tuesday, the 19 day of November 2024 / 28th Karthika, 1946
APPLICANT/4th RESPONDENT:
S.R.KALYANAKRISHNAN, PRESIDENT,
BUSINESS INDIA INVESTORS FORUM,
CMC NO.516/11, CHENGANNUR,
ALAPPUZHA DISTRICT - 689 121.
RESPONDENTS/PETITIOINER/RESPONDENTS 1 TO 3 & 5 TO 18:
1. SRI.N.VIJAYAKUMAR, S/O.NARAYANAN NAIR, PERUMANOOR HOUSE, ERAMATHOOR
P.O., MANNAR, ALAPPUZHA DISTRICT.
2. COMMERCIAL HIRE PURCHASE (INDIA) LTD., REGISTERED OFFICE, P.B.No.
2722, NO.62, GCDA COMPLEX, MARINE DRIVE, KOCHI - 682 031.
REPRESENTED BY ITS MANAGING DIRECTOR, M.G.JOHN, S/O.LATE GEE
VARGHESE GRACE DALE, THAZHAKKARA, MAVELIKARA.
3. M.G.JOHN, S/O.LATE GEE VARGHESE , GRACE DALE, THAZHAKKARA,
MAVELIKARA.
4. N.G.SAMUEL, S/O.LATE N.C. GEEVARGHESE, NEDIYAKALAYIL, BATHANIA,
KULANADA.
5. G.GOPINATH, S/O.GOPALAN, ASWATHY, ERUVA EAST, KAYAMKULAM P.O.
6. ABRAHAM.M.G., S/O.AVIRA GEORGE, MULAMOOTTIL LIJO VILLA, BEAT NO.4,
CHENGANNUR P.O.
7. ANAMMA ABRAHAM GEORGE, D/O.P.A.GEORGE, MULAMOOTTIL LIJO VILLA, BEAT
NO.4, CHENGANNUR P.O.
8. OMANA GOPINATH, D/O.NARAYANAN , ASWATHY, ERUVA EAST, KAYAMKULAM P.O.
9. EAPEN CHERIAN, S/O.N.C.EAPEN, NALLUR PUTHENVEEDU, ARATTUPUZHA P.O.,
CHENGANNUR.
10. P.M.THOMAS, S/O.P.J.MAMMEN, PUTHENPURACKAL, MULAKKUZHA, CHENGANNUR.
11. CHERIAN VARKEY, S/O.K.J.VARKEY, VATTAPRAMPIL, ITI JUNCTION,
CHENGANNUR.
12. JAYASREE KALYANAKRISHNAN, D/O.RAMACHANDRAN PILLAI, SREE KRISHNA
MANDIRAM, THITTAMEL, CHENGANNUR P.O.
13. VARGHESE.J.Y., S/O.YOHANNAN, JIJO VILLA, NORTH MAMKUZHI,
PALLARIMANGALAM P.O., MAVELIKKARA-7.
14. SASIDHARA PANICKER, S/O.MADHAVAN NAIR, PUTHENPURACKAL HOUSE,
KURATHIKAD, MAVELIKARA-7.
15. MONI JOHN, S/O.K.D.YOHANNAN, KALEECKAL LINI BHAVAN, KURATHIKAD,
MAVELIKARA-7.
16. MARY VARGHESE, D/O.JOHN, JOJO VILLA, NORTH MAMKUZHI, PALLARIMANGALAM
P.O., MAVELIKARA-7.
17. JESSY MONI, W/O. MONI JOHN, KALEECKAL LINI BHAVAN, KURATHIKKAD,
MAVELIKARA-7.
18. DIVYA GOPINATH, D/O.G.GOPINATH, ASWATHY, ERUVA EAST, KAYAMKULAM P.O.
Company Application under Rule 9 of the Companies (Court) Rules,
1959 filed by the above named 4th respondent praying for an order
directing;
1. The core committee constituted in the above case to make
arrangements for the transfer of the ownership and possession of
tower B residential apartment referred to in the above company
petition in favour of the petitioner forum after assessing its value
to be deducted from the total amount due to the members of the
petitioner forum.
2. Further provide the property of the 1st Respondent Company at
Chengannur to be transferred in favour of the petitioner to meet the
balance amounts due to the petitioner forum members.
3. Allow the petitioner and the members of the forum to litigate their
rights as against the builders untrammelled by the orders of this
Hon'ble Court in the above company petition staying all civil and
criminal cases across the state, against the builders and the
proposers.
4. Pass such other Order/Orders as this Honourable Court may deem fit
and proper in the premises of the case.
This Company Application coming on for orders on this day upon
hearing Sri.Avinash K.Krishnan & Rakhi Vijayan, Advocates for the
Applicant and M/s.C.S.Manu & S.K.Premraj, Smt.Sumey Chandran Advocates
for R1, Smt Teena Mary Thomas, Advocate for R2, Sri.R.Sanjith, Advocate
for R3, Sri.Bobby Mathew, Advocate for R4, Government Pleader and
Mr.Justice K.Abraham Mathew, former High Court Judge, Core Committee
Chairman,appointed by this Court,Adv.N.Raghuraj(Sr) for Business India
Builders and Developers Ltd and D.Kishore for Green City Heritage Private
Limited, the Court passed the following:-
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
1
M.A.ABDUL HAKHIM, J.
-------------------------------------
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
--------------------------------------
Dated this the 19th day of November, 2024
ORDER
1. Since three Reports dated 06.09.2023, 14.11.2023 and
02.07.2024 submitted by the Chairman of the Core
Committee constituted as per the judgment dated
21.11.2013 in C.P.Nos.41 & 42, 52 of 2009, 42 of 2012
& 5 of 2013 remained without consideration of this
Court, this matter is listed before me.
2. Three companies by names (1) Business India Builders
and Developers Ltd, ('BIBD' for short) (2) Commercial
Hire Purchase (India) Ltd, and (3) Business India
Shares and Insurance Services (P) Ltd were sought to
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
be wound up in the above Company Petitions. BIBD
was holding Building permit dated 30.01.2006 to
construct a multi-storied building in its land situated in
Edappally North and South villages. BIBD had entered
into a Development Agreement dated 30.10.2007 with
Green City Heritage Private Limited ('GreenCity' for
short) for making constructions in accordance with the
said Building Permit, by which GreenCity is entitled to
take 70% and BIBD is entitled to take 30% of the super
built up area.
3. As per the said common judgment dated 21.11.2013,
this Court disposed the above Company Petitions
approving sanction to the Compromise Scheme
propounded by the parties in Company Application
No.340/2011 in C.P.No.41/2009 under Section 391(2) of
the Companies Act, 1956. The Compromise Scheme
was to revive the companies by permitting GreenCity to
complete the construction of the above project and hand
over 30% of the super-built-up area to the Core
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
Committee towards payment of the debts to the
creditors. The Core Committee was constituted to
supervise the implementation of the Scheme.
4. The said project consists of three Towers of apartments-
A,B & C. Tower B is completed and Occupancy
Certificate is received and allottees within the share of
GreenCity started occupying Tower B. Towers A and C
are to be completed after obtaining Building Permit from
the local authority.
5. When Tower B alone is taken into consideration, 30% of
the share of BIBD would come to 24 apartments,
according to the BIBD, and 20 apartments, according to
the GreenCity. If the entire Project is taken into
consideration, 30% of the share of BIBD would come to
35 apartments, according to both parties. GreenCity
agreed to give 35 apartments from Tower B itself
provided it gets approval for Tower A and C. But on
account of the delay in getting approval for Tower A and
C from the Corporation of Cochin, apartments are not
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
handed over even now.
6. GreenCity has made a Security Deposit of Rs.3 Crores
with the BIBD and has met Core Committee expenses.
BIBD has to meet the costs for land conversion also.
According to GreenCity, all these amounts are to be
deducted from the 30% share due BIBD. The learned
counsel for the GreenCity Mr.D.Kishore submitted that
the details of the expenses are already submitted to the
Chairman of the Core Committee. According to
GreenCity after adjusting the aforesaid expenses, the
number of apartments to be handed over to BIBD is 32
apartments. Learned counsel for the GreenCity
submitted that in order to settle the issues at the earliest
to the interest of all, GreenCity is agreeable to hand
over 35 apartments and to waive all the aforesaid claims
for expenses and security deposit, towards the final
settlement of 30% share of BIBD.
7. On the other hand, the learned Senior Counsel for BIBD
Sri.N.Raghuraj submitted that BIBD is to be given 40
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
apartments and waive all the aforesaid claims for
expenses and security deposit towards the final
settlement of 30% share of BIBD.
8. Learned Counsel appearing for the creditors invited my
attention to the inordinate delay in the settlement of the
claims of the creditors on account of the aforesaid
dispute between BIBD and GreenCity.
9. It is seen that only if the apartments due to BIBD are
handed over to the Core Committee for sale, and the
same are sold the fund for settlement of the creditors
could be generated. Everybody has been suffering on
account of the delay in settlement of dispute between
BIBD and GreenCity. Early settlement of the dispute is
highly essential in the interest of justice. It is in the
interest of BIBD and GreenCity also to settle the issue at
the earliest in mediation. Counsels for BIBD and
GreenCity submitted that they are ready for a mediation
for resolution of the dispute. The present Chairman of
the Core Committee is Justice Mr.K.Abraham Mathew,
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
Former Judge of this Court. The Chairman has full
knowledge of the facts and figures of the matter. I am of
the view that the Chairman is the best suited person to
conduct mediation with respect to the aforesaid dispute
between BIBD and GreenCity. Hence, I request Justice
Mr.K.Abraham Mathew, if convenient, to conduct
mediation with respect to the aforesaid dispute between
BIBD and GreenCity and to submit a Report to this
Court within a period of one month in order to enable to
pass further orders in the matter.
10. In the Report dated 06.09.2023 the Chairman of the
Core Committee has made a Request to de-freeze the
following accounts which were ordered to be frozen as
per the order dated 16.03.2022.
1. A/c.No.13800200107652 maintained by Business
India Builders & Developers Ltd. with the Federal Bank
Ltd., Palarivattom Branch, Ernakulam.
2. A/c. No. 05202320001726 maintained by Green City
Heritage Private Ltd. with the HDFC Bank,
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
Palarivattom Branch, Ernakulam.
11. None of the parties have any Objection to the said
Request of the Chairman of the Core Committee.
Accordingly, the aforesaid Bank accounts are de-
freezed subject to the condition that it shall be operated
with the approval of the Chairman of the Core
Committee. Registry is directed to communicate this
Order to both the aforesaid Banks.
12. The Report dated 14.11.2023 of the Chairman of the
Core Committee is with respect to the aforesaid dispute
between BIBD and GreenCity and hence no further
order is necessary.
13. The Report dated 02.07.2024 of the Chairman of the
Core Committee requests this Court to pass a
prohibitory order interdicting the sale or encumbrance of
the properties mentioned in Annexure-G of the
Compromise Agreement dated 24.05.2011 based on
which this Court sanctioned the Scheme on the ground
that the present Managing Director of BIBD and another
Co.Appl.No.198 of 2023 in Co.Pet.No.41/2009,
Co.Appl.No.32 of 2024 in Co.Pet.No.41/2009,
Co.Appl.No.194 of 2019 in Co.Pet.No.42/2009,
&
Co.Appl.No.198 of 2019 in Co.Pet.No.42/2009
person who was ousted from the company have been
attempting to sell Item No.5 property. In view of the said
Request an order of temporary injunction is passed
restraining the Business India Builders and Developers
Ltd and Directors & Office bearers from selling or
encumbering or otherwise dealing with the properties
mentioned in Annexure-G of the Compromise
Agreement dated 24.05.2011 sanctioned by this Court in
the above Company Petition, until further orders.
14. Post the case for further consideration on
13.01.2025.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/x
19-11-2024 /True Copy/ Assistant Registrar
