TMI Blog2021 (3) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... lly the whole of the undertaking of the Respondent - seeking to freeze the removal, transfer or disposal of funds, assets, properties of the Respondent - seeking direction to submit the details of the bank account(s) in which the sale proceeds of the entry tickets issued - seeking to appoint an inspector to identify and list out the assets of Respondent No 1 installed at the Jatayu Project and report the variation of the same with the list of assets reflecting in the latest audited financial statements to this Hon'ble Bench. HELD THAT:- This Tribunal directs Respondent 2,3,4,5 and 6 to submit before this Tribunal the details of the bank accounts in which the sale proceeds of the entry tickets issued on 13th 14th and 15th October 2020 were credited, within two weeks from the date of receipt of this order. In order to appoint an Inspector to identify and list out the assets of Respondent No.1 installed at Jatayupara Project and report the variation of the same with the list of assets reflecting in the latest Audited Financial Statements, the Petitioner is directed to file a memo suggesting the names of three reliable persons, with mutual consent from the opposite side, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had invested approximately ₹ 30,00,00,000.- (Rupees Thirty Crores) in the Jatayupara Tourism Project ( Project ), which was raised from various shareholders and financial institutions. The Project was partially opened to the public on 23rd August, 2018. Around 4,00,000 (Four lakhs) tourists have visited the Jatayu Tourism Project , within a very short period of 16 months. The Jatayu Tourism Project was able to make revenue of ₹ 5,71,75,398.- (Rupees Five Crore Seventy-One Lakh Seventy-Five Thousand Three hundred and Ninety-Eight Only) during the Financial Year 2018-2019. The revenue generated during the financial year 2019-20 (Unaudited) is approximately ₹ 11,49,00,000.- (Rupees Eleven Crore Forty-Nine Lakhs Only). The Respondent No. 6, had transferred the exclusive right for the operation, running, administering and managing the entire project for a period of 30 years, except Jatayu Sculpture and Museum and cable car Ropeway. winch to the Respondent No.1, vide an Agreement dated 23rd September, 2015. In consideration operating the right of the operation, running, administering and managing of the Project in the concessional land for the entire concession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala and the Jatayu Project is listed among the first list of the tourism centres that can be opened. 6. It is further stated that the single source of revenue of the Respondent No. 1 is the revenue generated from ticket sales. The proceeds from the ticket sales were being used to repay the bank loan, payment of salaries of staff, maintenance of assets, payment of rentals for car parking, payment of Government fees and other operational expenses. The usage fees of the cable car were also being collected in the Bank account of the Respondent No. 1 as part of entry tickets and the same were regularly settled with the cable car operator, i.e. Usha Breco Limited. 7. It is also stated that the basic structure of the billing system of Respondent No. 1 has been tampered, altered and modified by the Respondent No.6, Respondents No. 2,3, 4 and 5 and thereby caused to divert the business income and prospective income of the Respondent No. l to Respondent No. 6 and thereby caused serious nature of the prejudice to the Petitioners, Shareholders and the Respondent No 1 Company. 8. It is also stated that the registered office of Respondent No.1 is situated at the project site itself i. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No.6 or Respondent No. 12 authorizing the said company to create assets in its name at the project land. Moreover the Respondent No.1 company has unconditionally agreed that all terms in the Concession Agreement dated 1.9.2011 executed by the Respondent No.12 in favour of Respondent No.6will be binding on the Respondent No.1 (sub-contractor) and they will obey the same without any violations. 13. As per the terms of the Concession Agreement executed by the Respondent No.12 through the Respondent No.13 a registered Lease Deed of the project area of 60 acres is executed in favour of the Respondent No.6 for 30 years enabling the Respondent No.6 to create the project assets detailed in the Concession Agreement and hold the title and possession of the same till the concession period by raising funds through public participation and thereafter to transfer the same to the State of Kerala (Respondent No.12). 14. The Respondent No.1 company never invested ₹ 30 crores as alleged. It has financed the project by equity, debt etc about 23 crores. A loan to the tune or three crores was availed as term loan from M/s. DhanaLekshmi Bank Ltd. making the Respondent No.6 and Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same were never siphoned off by the Respondents Nos. 2 to 10 as alleged. The Respondent No.1 company and its shareholders have invested the funds fully knowing the terms of the above said agreement and they have fully approved all the transactions. But when they started violating the terms and refused to do operation under the absolute control of the Respondent No.6 as agreed, the Respondents Nos.6 and 8 have no other option but to terminate the sub licence. 22. The project was never closed down on 12.3.2020 as alleged. only public entry was restricted. From 14.3.2020 till date the operations are being done by the Concessionaire Company, Respondent No.6 company itself. From 12th October 2020 Government of Kerala has allowed public entry to the project site. The sub licence was terminated with effect from 14.3.2020 and from that date onwards the Respondent No.1 company has no right to do any operational activities through their bank Account No.007805300017241 as alleged. Due to the objection raised by the Respondent No.1 company the Dhanalakshmi Bank Ltd. has not allowed the Respondent No.6 to links its account for online ticketing initially. The said letter is untenable and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreed upon and attempted to take over the project area to their possession and control the sub licence was terminated duly with effect from 14.3.3020 and all operations from that date till this date is being carried out by the Respondent No.6 company and the same was already approved by the Hon'ble Commercial Court, Thiruvananthapuram by its order dated 4.11.2020 in C.M.A (Arb) No.1.2020. 28. The Respondent No.1 company has no assets or rights over the project or project assets. The project assets, movable or immovable, tangible or intangible available in the project site absolutely belongs to the respondent No.6 and the same cannot be transferred to anybody except to the Government of Kerala on termination of the concession period. 29. The termination of a commercial sub licence is not a matter to be agitated by a group of shareholders in a Company Petition filed under Sections 241 and 242 of the Companies Act. 30. Jatayu Project is not an undertaking under Section 180 and the alleged investment of the Respondent No.1 in the project never comes to 20% as alleged. The petitioner s dubious intention was to hijack the project by hook or crook and they are filing all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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