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Judgment
The Court : Two applications being CA No. 336 of 2018 (filed by Rajat Chanda Bhowmik and Bhaswati Chanda Bhowmik) and CA No. 337 of 2018 (filed by Touchpoint Commercial Pvt. Ltd.) appear in the list along with the main company petition and an application under Section 450 of the Companies Act, 1956 filed by another set of creditors.
In the application being CA No. 336 of 2018, applicants have prayed for vacating and/or recalling of the order dated 7th September, 2018 passed in CA No. 224 of 2018, CP No. 1 of 2016 as also for a direction upon the Provisional Liquidator to forthwith take actual physical possession of the assets, properties and bank accounts, books and records of the company. The applicants claim that they have paid the entire consideration money for a flat at Avani Aspire at Nibra to Avani Projects & Infrastructure Ltd., the company. According to the applicants in view of the order dated 7th September, 2018 they are unable to take possession of the flat and are seeking recalling of the order dated 7th September, 2018 so that they can enter into possession and to have the necessary document executed in their favour. In the alternative, they say that the company should refund the entire consideration money received for the said flat with interest. The applicants also submit that the order dated 7th September, 2018 appointing the Provisional Liquidator is being misused by the company in the proceedings filed against it before the National Company Law Tribunal, 2 Kolkata Bench in the proceedings filed by other creditors of the company.
It appears from the report filed by the official liquidator pursuant to a direction given in the order dated 7th September, 2018 that State Bank of India has invoked the provisions of SARFEASI Act, 2002 by issuing notice under Section 13(2) and 13(4) of the said Act on the ground of default against the company in respect of Avani Aspire Project at Nibra. Considering the nature of the application, the statement made therein I am not inclined to pass any order so far as the vacating of the order dated 7th September, 2018 is concerned.
In the application being CA No. 337 of 2018 the applicant therein states that pursuant to payment of money quite sometime back, the applicant has been put into possession of a flat being Flat no. 6G, 6th Floor, Block-I, Avani Oxford, Phase-II. The applicant seeks execution of the conveyance and also a protection from being dispossessed from the said flat. It appears that the last of the alleged payment of consideration money by the applicant was dated 22nd April, 2016. The applicant despite making payment of the entire money did not pursue the execution and registration of conveyance in its favour. The applicant, if is in possession the same is protected under Section 53A of the Transfer of Property Act, 1882 as also by the orders passed in the winding up proceedings. It is submitted by the company and other creditors that no copy of the application being CA No. 337 of 2018 has been served on them. The applicant in the said application is directed to serve copies of such application on the company, the official liquidator and the supporting creditors who were present before this Court on 7th September, 2018. I am also not inclined to pass any interim order in the said application at this stage.
After considering the report filed by the official liquidator pursuant to the order dated 7th September, 2018, I found that the company and/or officials agreed to supply the particulars prayed for by the official liquidator by 25th September, 2018 but did not do so. The company however relies upon some receipt along with three bunch of documents which the company claims to have been submitted to the official liquidator sometime between 8th to 11th October, 2018. In any event the documents have been submitted beyond the time agreed upon.
The official liquidator is directed to consider the purported explanation said to have been furnished by the said company and revert back on the next date. With regard to the flats which are found to be vacant in terms of the report of the official liquidator dated 27th September, 2018 the official liquidator is directed to take actual physical possession of such flats. The local police authority on being requested by the official liquidator should render all necessary assistance for the purpose of taking over actual physical possession of the vacant flats. So far as the other flats, the possession of which are claimed to be made over by the company, the official liquidator shall remain in symbolic possession. The official liquidator is also directed to issue a notice to the State Bank of India who claims to have invoked the provisions under the SARFEASI Act in respect of Avani Aspire Project at Nibra, Kona Expressway, being the subject matter of CA No. 336 of 2018. The official liquidator after considering the document submitted by the said company allegedly between 8th to 11th October, 2018 shall also indicate on the next date whether any further document or particulars are required by him from the said company.
The company shall also prior to the next date file an affidavit through its Managing Director indicating therein how and when the money received from the applicants of CA No. 336 of 2018 and CA No. 337 of 2018 reflected in the Books of Accounts of the said company along with particulars of service tax collected in respect of the said payments and deposit thereof.
List this matter on 4th January, 2019.