Madras High Court
S.Subramanian vs The Official Liquidator on 27 September, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
OSA.No.184/2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.09.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE K.RAJASEKAR
OSA.No.184/2024 & CMP.No.21889/2024
S.Subramanian ... Appellant
Vs.
1.The Official Liquidator
High Court, Madras as Liquidator of
M/s.Selvarani Chit Funds Pvt Ltd.,
[In Liquidation], No.29, Rajaji Salai
Corporate Bhavan 2nd Floor, Chennai 600 001.
2.S.Kalamani
3.P.Gandhimathi
4.Mr.Rajavel ... Respondents
Prayer : Original Side Appeal filed under Order XXXVI Rule 11 of
O.S.Rules read with Clause 15 of Letters Patent.
For Petitioner : Mr.K.Ananda Raja
For Respondents : Mr.K.S.Navin Balaji
1
https://www.mhc.tn.gov.in/judis
OSA.No.184/2024
JUDGMENT
[Judge of the Court was delivered by S.S.SUNDAR, J.,]
(1)The present Original Side Appeal is directed against the order dated
02.02.2024 made in Company Application No.36/2024 in Company
Petition No.260/2004 wherein the appellant prayed for stay of further
proceedings in REA.No.2/2023 in REP.No.19/2009 in OS.No.159/2005
on the file of the learned II Additional District Judge, Salem.
(2)The appellant is one of the Directors of the Company by name
M/s.Selvaranai Chit Funds Private Limited, which is under liquidation.
On the basis of the Agreement of Sale dated 18.11.2002 executed by the
Directors of the Company in their individual capacity, one
K.Subramanian, filed a suit in OS.No.159/2005 on the file of Additional
District Court [FTC-I], Salem, for specific performance of the Agreement
of Sale. The said suit was decreed exparte on 12.02.2008. Pursuant to
the decree, the decree holder, namely the plaintiff in OS.No.150/2005
filed REP.No.19/2009 and it is stated that through Court, a Sale Deed also
was registered in favour of the Legal Heirs of the decree holder who are
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respondents 2 to 4 in this appeal. Respondents 2 to 4 have taken steps to
take possession of the property by filing an application before the
Execution Court. An order was passed by the Execution Court in
REP.No.19/2009 on 05.12.2016. Meanwhile, winding up proceedings
were initiated against Company and an Official Liquidator was appointed.
The Official Liquidator appointed for winding up, was made to believe
that the property in respect of which agreement of sale was executed by
Directors belong to the Company and therefore, the Official Liquidator
filed CRP.NPD.No.1064/2019 as against the order of delivery. The said
Civil revision Petition was dismissed by this Court vide order dated
24.08.2023 after elaborately considering all the documents.
(3)Despite the dismissal of the Civil Revision Petition by this Court holding
that the property is the individual property of Directors, the appellant
herein wanted the Official Liquidator to file a Special Leave Petition
against the order of this Court in the Civil Revision Petition. Thereafter,
the appellant herein moved three applications, namely, Company
Application 34/2024 to direct the Official Liquidator to file a Special
Leave Petition before the Hon'ble Supreme Court as against the order in
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CRP.No.1064/2019, Company Application No.35/2024 to direct the
Official Liquidator not to deliver possession of the property which is the
subject matter of the suit in OS.No.159/2005 and Company Application
No.36/2024 to stay all further proceedings in REA.No.2/2023 in
REP.No.19/2009 in OS.No.159/2005. All the three applications were
dismissed by a learned Single Judge of this Court vide common order
dated 02.02.2024 by holding that the applications are devoid of merits
and after finding that the property was purchased on 13.07.1994 in the
name of the Directors of the Company and it was never the property of
the company as there was no records to substantiate the contention of the
appellant. As against the said common order in all the three applications,
the present appeal is preferred by the appellant as against the order made
in Company Application No.36/2024, seeking for stay of execution
proceedings.
(4)On perusal of records, this Court finds that the Sale Deed dated
13.07.1994 was in favour of the individuals and the Company is not
involved in the sale transaction. This Court, on perusal of the order
passed in the Civil Revision Petition, finds that this Court had dismissed
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Company Application No.105/2017 on 11.08.2017 holding that property
is the property of the Directors and not the property of the Company.
This order passed under Section 446[1] of Companies Act, 1956, will
operates as res judicata. On the same reasoning, the Civil Revision
Petition itself was dismissed by this Court. Interestingly, the appellant
has not filed any appeal as against Company Applications No.34 and
35/2024. However, the present appeal is filed only as against the order
passed in Company Application No.36/2024 where the appellant seeks
stay of further proceedings in REA.No.2/2023 in REP.No.19/2009.
(5)It only shows that the appeal is motivated and lacks bona fides. In the
totality of circumstances, this Court finds that this appeal is filed with an
object of defeating the valuable right of the decree holder in
OS.No.159/2005. It is also to be noted that the appellant is a party to the
sale agreement and it is he who represented that the property belonged to
him to prompt the decree holder to enter into an agreement by parting
with substantiatial amount.
(6)For the reasons stated above, this Court finds that the appeal is liable to
be dismissed with exemplary cost.
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(7)Accordingly, the Original Side Appeal stands dismissed with cost of
Rs.50,000/- [Rupees Fifty thousand only] payable by the appellant to the
respondents 2 to 4 payable within a period of four weeks from the date of
receipt of a copy of this order.
(8)Post the matter after four weeks for reporting compliance.
[S.S.S.R., J.] [K.R.S., J.]
27.09.2024
AP
Internet : Yes
To
The Official Liquidator
High Court, Madras as Liquidator of
M/s.Selvarani Chit Funds Pvt Ltd.,
[In Liquidation], No.29, Rajaji Salai
Corporate Bhavan 2nd Floor, Chennai 600 001.
https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
S.S. SUNDAR, J.,
and
K.RAJASEKAR, J.,
AP
27.09.2024
https://www.mhc.tn.gov.in/judis
