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Judgment
Justice Anant Bijay Singh;
The present Appeal under Section 421 of the Companies Act, 2013 filed by the Appellants being aggrieved and dissatisfied by the order dated 19.02.2021 passed by the National Company Law Tribunal, Chandigarh Bench, Chandigarh in CA No. 781/2019 in CP No. 06(ND)/2009 RT CP No.01/2016 whereby and whereunder the Respondents herein jointly filed the CA No. 781/2019 against M/s UG Hotels and Resorts Limited represented by its Administrator and after hearing the parties, the Tribunal disposed of the CA No. 781/2019 and passed the following orders:
“13.In the circumstances and for the aforesaid reasons, the instant CA No. 781/2019 is disposed of as under:-
i)The first applicant shall be permitted to operate, run and maintain the F&B outlet at the resort of the respondent No. 1-UG Hotels and Resorts Limited, in terms of the Annexure A site plan filed vide Diary No. 00872/4 dated 18.11.2020 to generate revenue and to meet the day to day expenses.
ii) All the expenditure to uplift the face of the resort and to make all the necessary repairs and all sorts of miscellaneous expenditure thereon and to run the F&B outlet shall be borne by the applicant itself in the first instance under the supervision and guidance and approval of the Administrator and the same can be recovered from the income generated from running the F&B outlet and the sale proceeds of the resort, in addition to the amounts payable to it, under the orders of the Company Law Board.
iii) The applicant shall handover the peaceful vacant possession of the resort to the Administrator/to the buyer within one month from the date of receipt of notice for the same from the Administrator.
iv) The applicant shall not be entitled to claim any equities of any sort for vacation of the property of the first respondent company, on receipt of notice from the Administrator.
v)The applicant No. 2 and the legal heirs of late Shri H.S. Ghai shall cooperate with the Administrator as well as with the applicant No. 1 and shall not create any obstruction or hindrances, in any manner whatsoever to the applicant No. 1 in the implementation of this order. vi) The parties are at liberty to approach this Tribunal, in case of any clarification or any difficulty either in the implementation or interpretation of this order.
14.Accordingly, CA No. 781/2019 is disposed of.”
The facts giving rise to this Appeal are as follows:
The Appellants are the legal heir of Mr. Harmeet Ghai. The Respondent No. 1 and 3 are the son and daughter of the Mr. Harmeet Ghai. The Appellant No. 2 is the widow of Shri Harmeet Ghai. The Appellant No. 2 and 3 have given special power of Attorney (SPA) to the Appellant No. 1 to pursue the present case. Mr. Harmeet Ghai the Late father of Appellants herein had purchased the Land totaling to 166 Bighas and 18 Biwas on 10.01.1986 and had paid the entire consideration amount of Rs. 9 Lakhs in lieu of which the owner had executed a GPA dated 15.01.1986 in favour of Late Mr. Harmeet Ghai for entire land and possession of entire land was delivered to Late Mr. Harmeet Ghai on 15.01.1986 itself.
ii) The Respondent No. 2 Company was incorporated on 05.02.1986 as a private limited company. On 13.01.1987, Late Mr. Harmeet Ghai sold 55% undivided shares of the total land to Mr. Vinod Kumar Sharma by Registration of 12 Sale Deeds. In the year 1986, PWD acquired 5 Bhigas and 16 Biswas of land for construction of the village Road, however the final road was passed by the PWD in the year 1988.
iii) Further case is that on 04.06.1987, Mr. Vinod Kumar Sharma executed an Agreement to sale for his 55% undivided share of total land to the Respondent No. 2 Company for total consideration of Rs. 10 Lakhs only. The Respondent No. 2 company has been put into actual and physical possession of the 55% undivided shares in the land along with the Co-sharers. The Respondent No. 2 company did not even have the funds to pay for the consideration of the land purchased from Mr. Vinod Kumar Sharma, accordingly the Respondent No. 2 agreed to pay the consideration of Rs. 10 Lakhs by way of allotment of equity shares to Mr. Vinod Kumar Sharma and also gave an offer to become Director of Respondent No. 2 company.
iv) Thereafter, Mr. Vinod Kumar Sharma executed a GPA in favour of the Late Mr. Harmeet Ghai for his undivided 55% shares equivalent to 90 Bighas only and registered the same on 30.11.1989 wherein he had categorically mentioned that he is the owner and in possession of 555 shares of total land measuring 164.10 Bighas equivalent to 95 Bighas 8 Biswas (wrongly calculated). After execution of Agreement to sell/purchase of Land from Mr. Vinod Kumar Sharma the Respondent No. 2 company on 06.06.1987 applied under Himanchal Pradesh tenancy and Land Reforms Act, 1972 for Land measuring 95 Bigha 8 Biswas only. The State Government accorded its approval under Section 118 of the Act, 1972 for construction of the Hotel vide its order dated 03.05.1990 only for 95 Bigha 8 Biswas and balance undivided 45% share in the land remained with Late Mr. Harmeet Ghai. Thereafter, Sale Deed in favour of Respondent No. 2 company was executed and registered on 31.05.1990 for 55% undivided shares i.e. 95 Bigha 8 Biswas only accordingly the Respondent No. 2 became the owner of the land started the construction.
Further case is that total land remained available after the acquisition by PWD in 1988 was 161 Bighas and 2 Biswas and undivided 55% shares is equivalent to 88 Bighas and 12 Biswas. However due to miscalculation/inadvertence by the Revenue Authorities the permission was granted for 95 Bighas and 8 Biswas. Further, in the year 2000-2003 the recovery proceeding before the DTR, Delhi were pending against Respondent No. 2 company and in those proceeding it was felt necessary by the Tribunal that as the Hotel Land stands undivided with the adjoining land owner the sale of the Hotel land was not possible. Therefore, it was directed for submission of Demarcation/identification report according to the possession of the Hotel land and the other owners of Adjoining Land.
vi) Thereafter, Takseem No. 182 of 2003 was carried out and the undivided land was partitioned according to the possession of the respective owners with the mutual consent of all the parties. Further the Jamabandi and Tatima (Revenue Records) were accordingly modified and necessary entries were made therein. Since 2003 till 2016, the Respondent No. 2 company had the clear marketable title of the partitioned land with exclusive possession of the Hotel Land, which was duly registered in the Revenue Records. Khatoni’s and Jamabandi were also made separately. It is very clear from the records that the Respondent No. 2 is the owner and in possession of 92 Bighas and 8 Biswas of land i.e. 55% of the total land and remaining 45% of the Agriculture land equivalent to 75 Bighas and 10 Biswas belongs to other owners.
vii) Further case is that in the year 2006, the Respondent No. 1 entered into an Agreement with Respondent No. 2 along with its Directors for purchase of 51% stakes in the Respondent No. 2 Company. After carrying out due diligence and being satisfied with the title in all respect of the property, the Respondent No. 1 simultaneously also entered into an Agreement dated 28.12.2006 for purchase of Adjoining Agriculture land belonging to other owners admeasuring 70 Bighas and paid the full consideration as well. The said MoU/Agreement was signed by two Directors of the Respondent No. 2 company and in the said MoU specific Khasra Nos. of the partitioned land for 70 Bighas was mentioned. Further the Kothi is also part of the said 75 Bighas of land.
viii) The Respondent No. 1 had advanced loans to the tune of Rs. 15.40 crores to the Respondent No. 2, 3 and Appellant herein towards purchase of 51% equity. Thereafter, in the year 2007, certain disputes arose between the Respondent No. 1 and Respondent No. 2 company and its Directors. The Respondent No. 1 had filed Company Petition No. 06 (ND)/2009 under Section 397/398 of the Companies Act, 1956 before the erstwhile Hon’ble CLB, Principle Bench, New Delhi alleging various acts of oppression and mismanagement in U.G. Hotels & Resorts Ltd., Respondent No. 2, 3 and Mr. Harmeet Ghai. Thereafter, on 15.07.2009, settlement agreement (Annexure A-4 “Colly” at page 84 to 88 of the Appeal) was executed between the parties. As per the settlement agreement parties had reciprocal obligation and in performance of the obligation of Respondent No. 2, a sum of Rs. 50 Lakhs was paid back to the Respondent No. 1 company and petition was withdrawn by order dated 20.07.2009.
ix) Further case is that in para 4 & 5 of the terms of settlement, the amount Rs. 16.05 crores to be paid to the Respondent No. 1 was to be paid by way of sale of the Hotel Property of the company or by bringing an investor/lender by the other stakeholders. The Respondent No. 1 did not comply with their obligations as enumerated in the settlement agreement dated 15.07.2009 and had filed an application under Section 634A of the Companies Act, 1956 for execution of terms of settlement agreement which is pending adjudication before the Tribunal. Thereafter, the Respondent No. 1 and 3 jointly filed CA No. 282 of 2012 in CP No. 6 (ND)/2009 praying for appointment of Administrator to take all or any step to correct the revenue records and make the property of Respondent No. 2 company and to also take all or any permissions under prevalent local laws to facilitate the sale the Hotel owned by Respondent No. 2 company.
Further case is that Company Petition No. 9 of 2012 was filed by Late Harmeet Ghai before the High Court of Himachal Pradesh at Shimla for winding up of Respondent No. 2 company. Vide order dated 11.10.2012, Hon’ble High Court passed status quo order with regard to assets of the Respondent No. 2 company. Further, by consent of the parties, the Hon’ble CLB passed an order dated 31.01.2014 and appointed Hon’ble Shri Justice Manmohan Sarin (former Chief Justice, J & K High Court) as Administrator to clear the cloud, if any over title of assets to locate a buyer and to take steps for implementation of settlement dated 15.07.2009. Thereafter, Respondent No. 1 or the Administrator of Respondent No. 2 company appointed by CLB vide order dated 30.01.2014 filed several applications before Hon’ble CLB inter-alia praying:-
Publication in newspaper by made by inviting offers for sale of the assets of Respondent No. 2 company in accordance with the valuation of the assets submitted by M/s Haridicon Ltd., the valuer approved by the Government.
A direction be issued for sale of land measuring 10 Bighas in order to meet day to day expenses of Respondent No. 2 company and fee payable to the administrator.
Permission be granted to hold Annual General Meeting of Respondent No. 2 company in order to comply with statutory provisions.
Fee of the Ld. Administrator be paid from the sources of the company and/or by the petitioner as well as Respondents.
xi) Thereafter, the Hon’ble CLB vide order dated 08.10.2015 (Annexure A-6 at page 91 to 102 of the Appeal) passed an order stating that “In view of the above CA No. 132/C.1/2015 and 133/C.1/2015 are disposed of at this stage with liberty to the petitioner to file fresh one after the status quo order is vacated by High Court of Himachal Pradesh and if such necessity is felt by the applicant”. Thereafter, the Hon’ble High Court of Himachal Pradesh vide order dated 29.05.2018 modified the order dated 11.10.2012 to the extent that that Ld. Administrator shall take all the steps pursuant to order dated 31.01.2014 passed by the Hon’ble CLB for evaluation and sale of the property in question, but sale proceeds, if any, received shall not be disbursed to the creditors without the leave of the Court.
xii) Further case is that on 24.09.2019, CA 781/2019 was jointly filed by Respondent No. 1 and Respondent No. 3 for modification of the order dated 31.01.2014 passed by Hon’ble CLB. The Respondent No. 2 company through the Ld. Administrator also filed an affidavit along with a proposal to run a F & B outlet and supported the application of Respondent No. 1 and 3 herein. After hearing the parties impugned order was passed. Hence this Appeal.
Submissions on behalf of the Appellant
The Ld. Counsel for the Appellant during the course of argument and in his memo of Appeal along with written submissions submitted that the impugned order dated 19.02.2021 was passed against the consent order dated 31.01.2014. In terms of the settlement agreement, the amount of Rs. 16.5 crores to be paid to Respondent No. 1 by way of sale of the Hotel property of Respondent No. 2 company or by bringing an investor/lender. Ld. Administrator could not have supported the application of Respondent No. 1 company because he has become an interested party on account of the facts that the Respondent No. 1 company has been paying monthly remuneration to the Ld. Administrator. It is further submitted that Respondent No. 1 in its reply to the appeal also states at para 69 of the reply affidavit which is hereunder:
“69.That it is pertinent to mention that the present appeal has become infructuous. I tis pertinent to mention that the Ld. Administrator has received a proposal from M/s G.R. Buildhomes Pvt. Ltd. who have offered to purchase and acquire the Shilon Bagh Resort for a consideration of Rs. 40 crores and have deposited with the Administrator a sum of Rs. 2 crores which are kept as FDRs, pending the consideration and decision by the Hon’ble NCLT. Considering the numerous litigations against the company involving the Resort and the offer by the purchaser to purchase it on “as-is-where-is” basis, the Ld. Administrator recommended acceptance of the said proposal and simultaneously keeping the permission for running the F&B Outlet in abeyance, pending the consideration and acceptance of the proposal for purchase of Resort and payment of the sale consideration. In view of the same the appeal is liable to be dismissed.”
It is further submitted that the order dated 31.01.2014 passed by erstwhile CLB made it very clear that if the Administrator is unable to generate enough revenue from operation of the Respondent No. 2 company, he is to file an appropriate application before the CLB for appropriate orders. Instead of filing an application when he come to know about the purchaser the Ld. Administrator is accepting the monthly remuneration from the Respondent No. 1 company.
It is further submitted that if the Respondent No. 1 company will be allowed to run the F & B outlet at the property which 25 Kms away from the city and belongs to the Respondent No. 2 company, it is going to increase the liability of the Respondent No. 1 company. The Respondent No. 1 never acted on the impugned order for the period of 16 month and when the matter was listed for final hearing on 30.09.2022 before the NCLT, the Respondent No. 1 started putting money in the property of Respondent No. 2 company just to keep the property in their own custody. Further, the late father of the Appellant has brought several purchasers to purchase the property of the Respondent No. 2 company but the Respondent No. 1 company in hand in gloves with the Ld. Administrator did not allow any of them to purchases to the same. Based on these submissions the impugned order is fit to be set aside and the Appeal be allowed.
Submissions on behalf of the Respondents
The Ld. Sr. Counsel for the Respondent No. 1 during the course of argument and in his reply affidavit along with written submissions submitted that the impugned order dated 19.02.2021 was passed in accordance with the letter and spirit of the order dated 31.01.2014 and settlement agreement dated 15.07.2009, wherein permission has been granted, subject to conditions mentioned in para 13 of the order impugned to Respondent No. 1 herein to operate, run and maintain F & B outlet at the Resort of Respondent No. 2 in terms of site plan filed by the Ld. Administrator. Further, at para 10 of the order It is recorded that the Ld. Sr. Counsel for the Appellants submitted that in principle the appellants have no objection to the proposal but suggested that instead of giving the property/resort to the answering respondent, it should be put for public auction and the same should be offered on lease to the highest bidder. The Tribunal declined the said submission with a valid reasoning in para 12 and permission has been granted by the Tribunal vide order dated 19.02.2021 to secure the interests of Respondent No. 2.
It is further submitted that pursuant to the order, Respondent No. 1 has already spent an amount of over Rs. 20 Lakhs towards renovation, refurbishment, opening and running of F & B outlet, with the permission from the Ld. Administrator. The F & B outlet will be functional anytime. The Ld. Administrator received a proposal from M/s G.R. Buildhomes Pvt. Ltd. who have offered to purchase and acquire the Shilon Bagh Resort on “as-is-where-is” basis for a consideration of Rs. 40 crores and have deposited with the Ld. Administrator a sum of Rs 2 crores which were kept as FDRs, pending the consideration and decision by the Tribunal. The Ld. Administrator recommended acceptance of the said proposal. The Ld. Administrator in para 8 of the written submission filed before this Tribunal has mentioned in detail about the G.R. Buildhomes offer and the action taken by the Ld. Administrator is that regard before the Tribunal. However, given the uncertainty of the time frame for the Tribunal to decide, in the meantime, the appeal be dismissed.
The Ld. Counsel for the Respondent No. 2 during the course of argument and in his with written submissions submitted that the conduct of the Directors of Respondent No. 2 i.e. Late Sh. H.S. Ghai and Respondent No.3 is/was detrimental to the interest of the Respondent No. 2 company because of the mismanagement of these two Directors namely Late Sh. H.S. Ghai and Mr. Umesh Phalpher, diversion of funds that brought the Respondent No. 2 company to the financial brink of disaster and eroded the capital and its net worth. The said Directors always looked after their self-interest and their objective is only extortion and they never cared about the Respondent No. 2 company. The Respondent No. 3 and Appellants are now desirous of somehow extracting whatever they can, to the detriment of the public shareholders. As per the mandate of the Hon’ble CLB now NCLT, the sale proceeds are to be disbursed as per its direction and supervision and after due permission from the NCLT and the High Court of Himachal Pradesh.
It is further submitted that Sh. H.S. Ghai, himself proposed and accepted the appointment of the Administrator, did a volte face and began creating hindrances right from the beginning in the smooth functioning of the Administrator’s office and putting obstacles in accomplishing the mandate given to him, by the CLB vide order dated 31.01.2014. Sh. H.S. Ghai and Respondent No. 3 failed to locate a buyer for the property due to numerous encumbrances and hindrances created by Late Sh. H.S. Ghai. It is further submitted that the endeavour of the Administrator has always been to give effect to the settlement dated 15.07.2009 and accordingly, Administrator has been performing his duties to the best of his abilities in spite of the fact, that the deceased former Director Sh. H.S. Ghai and now his son/ Appellant No. 1 and associates have been creating hindrances and obstacles by trespassing and continuing with illegal occupation of portion of the Kothi, despite the State prosecuting them for the said offences. The status report filed before the NCLT are replete with details of the litigations instituted or got instituted against the company M/s U.G. Hotels and Resorts Limited by themselves and themselves and through their associates. The wrongful attachment of company property for personal sales tax liabilities, the Appeal being got filed before Revenue Authorities to create doubts on the title of the company and its property even after the Taksim No. 182 dated 26.07.2003, was got set asisde on the application of the Administrator. The Respodnent No. 3 and Late Sh. H.S. Ghai have never borne any expense or paid their share of the contribution for the Security and Administration of the company, despite the directions by the CLB and NCLT. The conduct of the Ex-Directors has been enumerated in various status reports filed before the NCLT.
It is further submitted that the Respondent No. 3 had jointly filed the application being CA No. 781/2019 along with Respondent No. 1 which was decided vide order impugned dated 19.02.2021. However, curiously he appears to be opposing application moved by the Administrator forwarding and recommending for consideration M/s G R Buildhomes Pvt. Ltd. offer for purchase of the resort itself, which was the ultimate mandate given to the Administrator. Subsequent to passing of the order dated 19.02.2021 the Administrator has filed tow applications before the Tribunal being CA No. 74 of 2021 and CA No. 75 of 2021. The Administrator moved an application CA 74 of 2021 for modification of Clause 5 (a) of the order dated 31.01.2014 by seeking exemption and relaxation from the terms of the order dated 31.01.2014 requiring a tripartite agreement to be executed between Buyer-Purchaser on the one hand and M/s Umak Investment Co. Ltd., Sh. Umesh Phalpher and Sh. H.S. Ghai (now deceased), on the other. The Administrator sought relaxation to have the tripartite agreement executed, in case approval being granted, without including the LR’s of Late Sh. H.S. Ghai.
The CA No. 75 of 2021 was filed by the Administrator as one G.R. Buildhomes Pvt. Ltd. has submitted a proposal to the Administrator for purchase of the Shilon Bagh Resort and the assets of the Company for a consideration of INR 40 crores. M/s G.R. Buildhomes is ready to purchase the assets of the company on “as is where is basis”, together with knowledge of all litigations and encumbrances attached to the property. The said proposal after due scrutiny found worthwhile and M/s G.R. Buildhomes Pvt. Ltd. deposited a sum of Rs 2 crores with the Administrator and accordingly CA 75 of 2021 was filed to accept the proposal made by M/s G.R. Buildhomes Pvt. Ltd. for the purchase of Resort subject to any further or additional terms and conditions which the Tribunal in its wisdom and discretion may consider proper and desirable. Further, the Respondent No. 3 filed his reply/objections to the said two CA’s, the Respondent No. 3 has made reckless allegations against the Administrator in the reply/objections. The Administrator submits that in view of the acts and omission having been brought on record of NCLT or the former Director as well as what appears to be a sinister attempt to grab and extract whatever he can from the prospective purchaser as a condition for not opposing and/or consenting for the contemplated tripartite agreement. The Respondent No. 3 has been changing colours more than a chameleon, depending upon his perceived financial gains.
It is further submitted that the Administrator relies on the status reports filed from time to time before the Tribunal and also replies on the contents of the CA’s 74 and 75 of 2021 and its rejoinder/reply to objection filed by the Administrator before the Tribunal.
The Ld. Counsel for the Respondent No. 3 during the course of argument and in his with written submissions submitted that the Respondent No. 3 is the Es-Chairman and Managing Director of Respondent No. 2 company along with the late father of the Appellant, both are also the promoter shareholders of the Respondent No. 2 company U.G. Hotels and Resorts Ltd. The main matter i.e. CP No. 06 ND of 2009 was disposed of vide consent order dated 20.07.2009 in terms of the mutual terms of settlement dated 15.07.2009 executed between the Appellant and the Respondents. The terms of the settlement have various reciprocal obligations which were not complied by the Respondent No. 1 company. In order to enforce the settlement dated 15.07.2009 by way of a joint application and by consent of all the parties, an Administrator was appointed by the Erstwhile CLB vide order dated 31.01.2014 (Annexure A-5 at page 89 to 90 of the Appeal) to enforce the terms of the settlement dated 15.07.2009.
It is further submitted that a joint application i.e. CA 781 of 2019 was filed by the Respondent No. 1 and 3 to permit the Respondent No. 1 to open a F&B outlet at the property of Respondent No. 2 so that some day to day expenses for the company can be taken out. The aforesaid application was allowed vide order dated 19.02.2021 directing the Respondent No. 1 to commence the work. The License was allowed to be given for only one and a half years as permitted by the Administrator. Hence the permission expired on 18.08.2022 prior to the final hearing in the present Appeal.
It is further submitted that the Respondent No. 1 in its reply to the appeal also states at para 69 that the Administrator has received proposals for purchase of the assets of the Respondent No. 2 company for INR 40 crores and prayed for keeping the impugned order kept in abeyance. The Respondent No. 2 has also prayed in its written submissions at para 7 and 8 to keep the impugned order in abeyance in view of the offers received for purchases of asserts of the Respondent No. 2 Company. The Respondent No. 1 never acted upon the impugned order for a period of 16 months, it is only when multiple offers were received for the purchase the assets of the Respondent No. 2 company, the Respondent No. 1 company started renovating the F&B restaurant in terms of the impugned order as late as on July 2022 after a period of 16 months from the date of the impugned order only to increase the liability and erode the net worth of the Respondent No. 2 company.
It is further submitted that the Respondent No. 3 has already withdrawn his consent from giving any permission given to Respondent No. 1 for running F&B outlet and on the basis of the same the impugned order deserves to be set aside and the instant Appeal be allowed or in alternative in terms of paragraph 13(vi) of the impugned order, the parties to approach the NCLT. The paragraph 13(vi) of the impugned order is hereunder:
“13(vi) The parties are at liberty to approach this Tribunal, in case of any clarification or any difficulty either in the implementation or interpretation of this order.”
After hearing the parties and going through the pleadings made on behalf of the parties and the impugned order dated 19.02.2021, we are of the considered view that averment made in para 69 of the reply affidavit filed by the Respondent No. 1 wherein the Ld. Administrator received a proposal from M/s G.R. Buildhomes Pvt. Ltd. who have offered to purchase and acquire the Shilon Bagh Resort on “as-is-where-is” basis for a consideration of Rs. 40 crores and have deposited with the Ld. Administrator a sum of Rs 2 crores which were kept as FDRs and the same is pending for consideration and decision by the Tribunal. We are conscious of the fact that joint application was filed before the Company Law Board and consent was recorded in the order dated 02.12.2013 and Justice (Retd.) Manmohan Sarin was appointed as Administrator to the Hotel and Resorts. Liberty also given in the impugned order to approach before NCLT in case of any difficulty in the implementation of the order. Keeping in view the equities, the facts and circumstances of the case and the background of the Company Law Board order, this instant Appeal is allowed with a direction to the National Company Law Tribunal, Chandigarh Bench, Chandigarh to take up the Applications i.e. CA No. 74 of 2021 & CA No. 75 of 2021 filed by the Ld. Administrator and after hearing the parties, the Tribunal may pass appropriate orders taking into consideration the subsequent developments in the matter, at an early date. Both parties are directed to appear before the NCLT on 20.12.2022. With these observations and directions, the instant Appeal is disposed of.
Registry to upload the Judgment on the website of this Appellate Tribunal and send the copy of this Judgment to the Adjudicating Authority (National Company Law Tribunal, Chandigarh Bench, Chandigarh), forthwith.