9911796707
TMI Blog2024 (7) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 44,41,250/- in terms of order of this Court dated 24.04.2014. 2. Briefly stated, the petitioners herein jointly applied for allotment of a commercial unit admeasuring 500 sq. feet in a Technology Park Project being developed by the respondent company in Gurgaon, at the rate of Rs. 5500 per sq. foot. Pursuant to the same, the petitioners deposited a sum of Rs. 27,50,000/- as full and final payment and receipt of the said amount was acknowledged by the respondent company vide a receipt dated 09.04.2010. Subsequently, the parties entered into a Developer-Anchor Option Agreement (hereinafter referred to as the 'Buy Back Plan') on 04.04.2010, the relevant clause of which has been reproduced hereinbelow: "2. TERMS OF INVESTMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleased was acknowledged to be due and payable by the respondent company, as reflected in the order dated 24.04.2014, it was stated on behalf of the respondent that certain issues under the FEMA [Foreign Exchange Management Act] may arise, insofar that the petitioners would have to secure an appropriate certificate to receive the amount; and further that a certain amount of service tax may be recoverable from the petitioners, which aspect came to be recorded in the order dated 24.04.2014, and therefore, the respondent was accordingly directed to deposit the said amount of Rs. 44,41,250/- with the Court. 5. The respondent company, however, sought more time to make the required deposit as directed by this Court, on 26.05.2014 as also 16.07.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir claim for the amount stated became crystalised on the instance of the respondent company acknowledging the sum of Rs. 44,41,250/- to be due and payable, which was recorded in the order dated 24.04.2014, and therefore, there was no occasion for the petitioners to file a claim before the Official Liquidator, which fact they could not bring to the attention of this Court on account of the unprofessional and inefficient conduct of their previous counsel. 8. The learned counsel for the applicants/petitioners has placed reliance on the decision of the Bombay High Court in the case Nahar Builders Ltd. v. Housing Development and Infrastructure Ltd. 2020 SCC OnLine Bom 2522, wherein a dispute arose between the rival parties and subsequent to ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the time the deposit was made until the time withdrawal is ordered, that amount is not the property of either party to the dispute. 8. It is true that an execution against HDIL is presently stayed but this is not an application for execution, nor is it, within the meaning of Section 14 (1 )(d), an application for 'the recovery of any property by an owner or lessor where such property is occupied by or is in the possession of corporate debtor'. To read only the words 'recovery of any property' as Ms. Patil does, but not to read the rest of clause (d) is materially incorrect. 9. The provisions regarding a moratorium cannot possibly apply to such cash deposits made in this Court. As Mr. Dwarkadas for Nahar Builders put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea that such certificate was not required, and thereby evidently delaying the release of the amount deposited with the Registrar General of the High Court, on their own fault. 12. A perusal of the record shows, that CO. APPL. 2459/2014 came to be moved on behalf of the applicants requesting that the amount deposited with the Registrar General of the High Court be invested in Fixed Deposits and such application was allowed on 10.05.2014. The petitioners confounded the issues when they joined in the batch of winding up petitions pending against the respondent company, which is reflected vide Annexure 'A-10', wherein the following order dated 22.07.2016 was passed: "All these petitions seeking winding up of the respondent company, VIGNES ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation to the Official Liquidator by the petitioners in these matters would not ipso facto amount to the institution of any claim before the Official Liquidator; and it can only be filed in accordance with the relevant Rules and at the appropriate stage. All the petitions, along with interim applications, stand disposed off." 13. Thus, it is borne out from the aforesaid order that all the claimants/investors including the learned counsel for the petitioners acknowledged that they would file their claim before the Official Liquidator. Evidently, thereafter no action was taken on behalf of the petitioners. To be specific, no action was taken on their behalf since the date relief was granted to them initially vide order dated 24.04.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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