TMI Blog2014 (2) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... IN CO. PET. 265/1998 - - - Dated:- 28-11-2013 - Hon ble Mr. Justice R. V. Easwar,JJ. For the Petitioner : Mr. Srinjoy Banerjee, Adv. for RBI. For the Respondent : Mr. Abhay Kumar and Mr. Tenzing Tsering, Advs. JUDGMENT R. V. Easwar, J. 1. This is an application filed by one Achyut Kumar Sharma and the following prayers have been made therein: - (a) Allow, entertain and taken on record the present application of the applicant and implead the applicant as a necessary party in the present Company Petition No.265 of 1998; (b) set aside the auction vide order dated 17.05.2006 passed by this Hon ble Court in C.P. No.265 of 1998 for 16.9 acres of land out of the total land purchased by the applicant vide sale deed dated 22.04.1995, 24.04.1995 06.05.1995 executed in his favour in respect of property situated at village Konaghatta, Khasba Hobli, Doddaballapur Bangalore in regard to property with Regd. Nos.684/97, 686/97, 687/97, 685/97, 691/97, 688/97, 681/97, 683/97, 689/97, 690/97, 693/97, 694/97, 682/97, 692/97 and 695/97 sold to the auction purchaser M/s. Metro Nirvana and cancel the said auction and subsequent auction also; (c) set aside the order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly registered. Several supplementary or additional affidavits to the application were also filed contending that the land in question had wrongly been sold to the auction purchaser, that mutation of the land had taken place in favour of the applicant and was also passed by the competent authority in the State of Karnataka and that in these circumstances the auction should be cancelled and the land be restored to the applicant. 4. The Official Liquidator filed a reply in the aforesaid application, objecting to the impleadment plea and questioning the bona fide and authenticity of the claim of the applicant to be the owner of the land. It was pointed out that the applicant did not present his credentials to the satisfaction of this Court and that he was merely trying to take advantage of the coincidence that his name and the name in the sale deeds were the same. The Official Liquidator questioned the claim of the applicant that he was the person in whose favour sale deeds were executed in the year 1995. It was further pointed out that since the land was sold under orders of this court by public auction and the auction purchaser was also put in possession, no purpose would be serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -director of the company in liquidation also filed a reply to the application and vehemently opposed the same. It was pointed out by him in the reply that if the applicant was the real owner of the property, he would have raised objections even at the time when the Official Liquidator took possession of the property, much prior to the date of auction. It was pointed out that in the affidavit filed by V. K. Sharma, it was stated that the property belonged to the company in liquidation even though the sale deed was in the name of Achyut Kumar Sharma. On 14.09.2005, V.K. Sharma made a statement in Court, in the presence of the applicant, that the land was purchased out of the funds of the company in liquidation and was so purchased in the name of the applicant only as a nominee of the company. It was thus pointed out by V. K. Sharma that even before the auction took place on 17.05.2006 this Court was aware that the land belonged to the company in liquidation, though standing in the name of the applicant. This was the reason why the plea of the applicant for stay of the auction sale was rejected by this Court. With regard to the claim of the applicant that he was an agriculturist, V. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On that date, in fact, no auction took place. The auction which the applicant appears to be referring to is probably the one which took place on 17th May, 2006. Thereafter, it was open to the applicant to take any remedy that may have been available in law, but he does not seem to have pursued any such remedy. Counsel for the applicant has cited no precedent where, under similar circumstances, any party can be impleaded in these proceedings under the Companies Act, 1956, and that too, at this stage. To my mind, this application is entirely devoid of merits and the same is dismissed with costs of Rs.11,000/- to be deposited in the account of the company (in liquidation) within two weeks from today. SUDERSHAN KUMAR MISHRA July 13, 2010 8. An appeal was filed against the aforesaid order before the Division Bench in Company Appeal No.26/2010. This appeal was disposed of on 21.12.2010. The Division Bench permitted the appellant (applicant herein) to withdraw the appeal and granted liberty to him to approach the Company Court with a fresh application mentioning all necessary details especially with regard to the property on which he claimed ownership. 9. It is pursuant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under orders of this Court passed on 10.05.2011, which re-enforced the contention that the applicant was merely indulging in delaying tactics. It was also pointed out that the details set-out in the form of a table in paragraph 12 of the report of the SFIO completely tally with the details given in the General Power of Attorney executed by the applicant in favour of C.M. Chopra, which proves that the claim of the applicant is false and untenable. The SFIO has also recorded in paragraph 20 of their report that the original title deeds were given to V.K. Sharma. Further, the fact that the applicant claimed to have purchased the properties in April/ May, 1995 and immediately on 12.12.1995 executed a registered Power of Attorney in favour of C.M. Chopra is tell-tale, and shows that the property was purchased benami by the company in liquidation and the applicant was not the real owner thereof. 12. The learned counsel for V. K. Sharma also addressed arguments generally supporting the stand taken by the learned counsel for the auction purchaser. No separate reply, however, was filed by V.K. Sharma to the present application. The learned counsel drew my attention to the affidavit dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... naging Director of the company in liquidation. V.K. Sharma did not appear before the SFIO, but the applicant appeared and a statement was recorded from him by the SFIO. He also placed certain documents through letter dated 26.02.2013. The SFIO first issued summons to 35 persons from whom the applicant claimed to have purchased the lands. Ten persons responded to the summons by either appearing before the SFIO or by sending replies. Out of five persons who appeared before the SFIO, one of them (Munikalappa) refused to sign the statement. Five persons out of 35 sent in their replies. 15. The SFIO thereafter went to Bangalore to record the statements of all the 35 persons since they were all residents of Bangalore rural district. Only 5 persons appeared at the camp office for recording their statements. Their statements are annexed to the report of the SFIO. 16. The SFIO obtained the relevant documents from the Sub-Registrar concerned. It also perused the balance sheets, bank statements and other relevant records of the company in liquidation. 17. In an attempt to verify the income tax return stated to have been filed by the applicant, a letter was written by the SFIO to the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the applicant. The SFIO, however, observed that from a plain reading of the letters, it appeared to them that the replies were written by the same person. Thus, the identity and creditworthiness of these persons have not been established by the applicant. They were not even mentioned before the SFIO in the course of the proceedings before it. Clearly, the story trotted out by the applicant that he took friendly loans from seven persons in Bihar was an afterthought. In addition to this the SFIO has also remarked that all the letters received from the seven persons appeared to have been written by the same person. Thus, there is no evidence to show the nature and source of the monies used for the purchase of the lands by Achyut Kumar Sharma, the applicant. 19. It is also very important to note that Achyut Kumar Sharma himself admitted before the SFIO that he gave the original title deeds relating to the lands to V.K. Sharma within a few months after he purchased the lands. He stated that he knew V.K. Sharma as he had meet him in an investor meet. He claimed to have made a deposit of Rs.75,000/- in the JVG Group, but could not produce any evidence in support of this claim before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the sale deeds the residential address of Achyut Kumar Sharma shown was in fact the address of the guest house of the JVG Group of companies in Bangalore. Coupled with this is the further fact - and a very crucial fact at that that Achyut Kumar Sharma had executed a general power of attorney in favour of C.M. Chopra who was an officer in the employment of the JVG Group of companies. This is a registered general power of attorney which was later sought to be revoked by an unregistered document. These facts, taken together with the fact that Achyut Kumar Sharma was wholly unable to prove the nature and source of the monies utilised for purchasing the land, can lead to the only conclusion that the lands in question actually belonged to the company in liquidation. The applicant, at best, was only the person in whose name the lands were acquired. He was merely the nominal owner of the lands; the real owner of the lands was the company in liquidation. 20. The SFIO has mentioned in paragraph 26 of its report that there was no increase in the value of land shown as stock-in-hand in the balance sheets of JVG Finance Ltd. for the years 1994-95, 1995-96 and 1996-97. Even the prosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansaction was found to be in cash and there were no banking transactions. All these facts taken cumulatively should have persuaded the SFIO to hold that the company in liquidation was the real owner of the lands and the claim made by Achyut Kumar Sharma was hollow. 22. In addition to the above I find merit in the contention of the learned counsel for the auction purchaser that the applicant did not challenge the action of the provisional liquidator, who took possession of the lands and also put it to auction, for a period of six years. Moreover, the present application was filed on 16.08.2011 when the applicant came to know that the sale deed was about to be executed in favour of the auction purchaser pursuant to the orders of this Court passed on 10.05.2011; this actually reinforces the contention that the applicant is merely indulging in delaying tactics. 23. Taking the entire conspectus of the facts and the conduct of the applicant, it seems to me that the applicant has been indulging in delaying tactics and trying to thwart the proceedings before the company court by taking frivolous and repetitive objections. His earlier application in Company Application No.1315/2006 was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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