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UNITECH REALTY PRIVATE LIMITED Versus THE UNIWORLD GARDEN APARTMENT OWNERSASSOCIATION

2015 (6) TMI 902 - DELHI HIGH COURT

Application for winding up - Non refund of non interest Bearing Maintenance Security (IBMS) - Direction to deposit the entire amount as a pre-condition to deal with its movable and immovable assets in the ordinary course of business - Held that:- On a consideration of the entirety of the matter as well as the documents filed by the parties which have been placed before us, it was the responsibility of the appellant to place the amounts collected towards (IBMS) from the apartment owners in a sepa .....

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f any dues at all. - Calling upon the appellant to secure the amount is clearly justified and cannot be assailed on any legally tenable grounds. However the appellant pleads financial difficulty in making a lump sum deposit. The amount can be secured by other conditions as well to mitigate this expressed difficulty. - CO.APP. 21/2015 and CMs No.10568/2015, 10569/2015 & 10570/2015 - Dated:- 29-4-2015 - MS. GITA MITTAL AND MR. P.S.TEJI, JJ. For The Appellant : Mr.Sandeep Sethi, Sr. Adv. with Mr.Ta .....

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up for consideration. The respondent has filed petition under Section 443 of the Companies Act, 1956 being Company Petition No.513/2014 seeking winding up of the appellant in the capacity of an association of apartment owners in the Uniworld Garden Complex. The respondent is an association comprising of 506 members, all of whom are owners of apartments in the Uniworld Garden, a Group Housing complex situated in Gurgaon. The appellant is only a subsidiary of M/s Unitech Ltd. and is responsible f .....

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n the housing complex, have been handed over to it as has been mentioned in the hand over letter dated 30th August, 2013. 6. The winding up petition was necessitated inasmuch as despite repeated notices and admission of the liability, the amount collected towards (IBMS) with all accruals thereon has not been handed over to the association. 7. An interim application being Co. Application No.375/2015 was filed praying for interim orders. On this application, various orders were passed directing th .....

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, parting with or alienating any of its movable and immovable assets. 8. The appellant filed Co. Application No.852/2015 seeking modification of the order and permission to sell off or part with its movable and immovable assets in the ordinary course of its business. By the impugned order dated 27th March, 2015, the learned Single Judge modified the order of injunction permitting the appellant company to do so provided that the entire amount of IBMS (reflected as ₹ 10,12,67,430/-) with int .....

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counsel that the order in fact completely interdicts the appellant from meeting his expenses like payments of salaries to his employees and operating its business. It is submitted that this fact has been completely ignored in the impugned order. Mr. Sethi submits that without prejudice to the rights and contentions of the appellant if the company is permitted to deal with its immovable assets, it would be willing to secure the amount. The appellant urges that large amounts of money are owed by .....

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y has admitted that large amount which was collected from the flat buyers towards maintaining Sinking Funds , was liquidated as back as in the year 2008. 11. Our attention has been drawn to the balance sheet for the year ending 31st March, 2014 submitted with the affidavit of which the company which reflects that the company had available a large amount of reserve and that it had also extended short term loans of large amounts to its parent company. Mr.Mongia contends that the appellant is flush .....

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the affidavit filed by the appellant would show that the entire amount collected towards IBMS has been utilised by it. The nature of the utilisation, however, is not disclosed. It is also not known whether the amount has been utilised for the purpose or in the manner required in the flat buyers agreement. The respondent has also absolutely refuted the liability of any dues at all. 14. Thus a question would arises as to whether the amounts being claimed by the appellant are owed by the individua .....

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