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Judgment
Amit Rawal, J—By this order, I intend to dispose of CA No. 377 of 2015 filed on behalf of the Plantation Investors Protection Society (Regd.) for constitution of a separate and a dedicated committee for sale of the assets of M/s. Golden Projects Limited on the premise that this Court, vide order dated 15.12.2010 passed in CP No. 115 of 2002, had, while noticing the respective contentions of the parties including of the Committee, which had filed CA No. 430 of 2010, assigned the task of sale of properties belonging to the M/s. Golden Projects Limited to the Committee constituted by the Hon''ble Supreme Court on 19.8.2004 in respect of sale of assets of Golden Forests (India) Limited.
It has been further submitted that after passing of the order in 2010, the Committee has not taken any task to identify the investors of the Golden Projects Limited, much less, sale of the properties, therefore, the investors are left high and dry.
It would be apt to give little preface to the matter in order to decide the issue raised in the aforementioned application.
This Court, vide order dated 11.4.2002 admitted the Company Petition bearing No. 115 of 2002 and the factum of the admission was ordered to be published and the matter was adjourned sine-die on 6.12.2004. Thereafter, an application for revival of the petition was filed, pointing out that the company petitions relating to the respondent-company pending in this Court were not transferred to the Hon''ble Supreme Court. The application was allowed and CP No. 115 of 2002 was ordered to be listed. This Court on 27.5.2010 modified the interim order passed by permitting the Company to dispose of a part of the lands owned by it to discharge its debt liability, subject to the condition that the entire sale process is supervised by a Committee consisting of the Official Liquidator and two Lawyers to be appointed by this Court, who shall also associate a representative of the respondent Company with them. The order dated 27.5.2010 reads thus:-
"Having heard learned counsel for the parties for some time, it appears that the interim directions earlier issued needs to be modified to the extent that the respondent Company may be permitted to dispose of a part of the lands owned by it to discharge its debt liability, subject to the condition that the entire sale process is supervised by a Committee consisting of the Official Liquidator and two Lawyers to be appointed by this Court, who shall also associate a representative of the respondent Company with them.
List on 13.08.2010 to enable learned counsel for the respondent Company to furnish details as to which parcel of land the Company wants to be disposed of first."
CA No. 430 of 2010 was filed under Order 1 Rule 10(2) of the C.P.C. on behalf of the Committee headed by Mr.R.N. Aggarwal, Chief Justice (Retd.), now aged 89 years, Mr.B.S. Bedi, aged 68 years (approx.) District & Sessions Judge (Retd.) and Mr.H.L. Randev, now aged 84 years, District & Sessions Judge (Retd.) for impleading the Committee keeping in view of the order dated 5.9.2006 passed by the Hon''ble Supreme Court in the matter of Group Companies of Golden Forest as party respondent. The aforementioned application was allowed and the Committee was permitted to be impleaded as respondent No. 2. In the main case, this Court noticed a fact that a list of 110 Companies had been submitted and such Companies were divided into three categories i.e., (i) Golden Forest (India) Limited and its assets mentioned at Serial Nos. 1 to 90; (ii) Golden Project and its associate companies mentioned at Serial Nos. 91 to 104 and; (iii) Societies and Trusts mentioned at Serial Nos. 105 to 110, which are also not part of the Golden Forest (India) Limited. It was also noticed that the Hon''ble Supreme Court had permitted the counsel for the Golden Forests (India) Ltd. to file an affidavit as to whether the properties of the Companies mentioned at Serial Nos. 91 to 104 belonged to Golden Projects Ltd. and its associates and the properties of societies and trusts mentioned at Serial Nos. 105 to 110 can be taken as the properties of Golden Forest (India) Limited. In this regard, the respondent company sought time and the matter was adjourned vide order dated 17.9.2010, which reads thus:-
"Present: None for the petitioner.
Mr. Y.S. Turka, Advocate for the respondent.
Mr. Abhimanyu Sharma, Advocate for the applicant in CA Nos. 430 and 431 of 2010.
CA No. 431 of 2010
This is an application under Order 1 Rule 10(2) of the CPC for impleading the Committee appointed by the Hon''ble Supreme Court vide order dated 05.09.2006 for the sale of the assets of Group Companies of Golden Forest as the party respondent.
It is averred that the respondent-company i.e. Golden Projects Limited is also a Group Company of the Golden Forest and, therefore, to facilitate the sale of assets of the said company, the Committee appointed by the Hon''ble Supreme Court should also be appointed as the Committee for the sale of its assets instead of Committee constituted by this Court on 27.05.2010 consisting of the Official Liquidator and two Lawyers.
Keeping in view the averments made in the application, I am of the opinion that the Committee appointed by the Hon''ble Supreme Court vide order dated 05.09.2006 is a necessary party in the present proceedings even to determine; whether the respondent-company is a part of the Group Companies of Golden Forest. Therefore, the applicant i.e. Committee Golden Forest (India) Limited is impleaded as respondent No. 2.
CA stands disposed of.
CP No. 115 of 2002
Before the Hon''ble Supreme Court, learned counsel representing the Golden Forest Group of Companies has given list of 110 companies. Such companies were divided into three categories i.e. (i) Golden Forest (India) Limited and its assets mentioned at Serial Nos. 1 to 90; (ii) Golden Project and its associate companies mentioned at Serial Nos. 91 to 104 and; (iii) Societies and Trusts mentioned at Serial Nos. 105 to 110, which are also not part of GFIL.
The Hon''ble Supreme Court permitted the counsel for the Golden Forest to file an affidavit if the properties of the companies mentioned at Serial Nos. 91 to 104 belong to Golden Project and its associates and the properties of Societies and Trusts mentioned at Serial Nos. 105 to 110 can be taken as the properties of Golden Forest (India) Limited.
Mr. Turka, learned counsel representing the respondent-company seeks some time to produce the affidavit, if any, filed in pursuance of such statement.
List again on 11.11.2010.
CA No. 430 of 2010
List along with CP No. 115 of 2002.
Sd/- (Hemant Gupta)
Judge"
17.09.2010
On 15.12.2010, while taking up the application in CA No. 430 of 2010 filed at the behest of the Committee and considering the submissions made on behalf of the rival parties, the Court found that since the Committee had taken number of steps in realising all the assets of Golden Forest (India) Limited and undertaken to some extent, a task of selling the properties belonging to the Golden Forests (India) Limited and also invited the claims from the investors, therefore, the Sale Committee of Golden Forests (India) Ltd. was permitted to continue with the sale of the assets of the Golden Project Limited. The order dated 15.12.2010 is reproduced herein below:-
"The present application is by a Committee constituted by the Hon''ble Supreme Court in respect of sale of the properties in Golden Forest (India) Limited and its Group companies vide order dated 19.08.2004. Subsequently, on 05.09.2006, the Hon''ble Supreme Court has issued comprehensive directions in respect of conduct of proceeding by the said Committee in respect of assets of the Golden Forest (India) Limited.
Golden Projects Limited is said to be an independent company of the ground companies of Golden Forest (India) Limited. It is so stated on the basis of list of Companies filed before the Hon''ble Supreme Court in which the companies mentioned at Sr. Nos. 91 to 104 were said to be not part of group companies of Golden Forest (India) Limited.
This Court on 27.05.2010 constituted the Sale Committee consisting of the official liquidator and two Lawyers to be appointed by this Court in respect of sale of assets of Golden Projects Limited, who shall also associate a representative of the respondent-company with them. The said order reads as under:-
"Having heard learned counsel for the parties for some time, it appears that the interim directions earlier issued needs to be modified to the extent that the respondent-company may be permitted to dispose of a part of the lands owned by it to discharge its debt liability subject to the condition that the entire sale process is supervised by a Committee consisting of the Official Liquidator and two lawyers to be appointed by this Court, who shall associate a representative of the respondent-company with them.
List on 13.08.2010 to enable learned counsel for the respondent-company to furnish details as to which parcel of land the company wants to be disposed of first."
The present application has been filed by the Committee constituted in terms of the Hon''ble Supreme Court order for modification of the aforesaid order. It has been asserted that the said committee has taken a number of steps in realizing all the assets of group companies of the Golden Forest (India) Limited and that the committee has invited claims from the investors/creditors of Golden Forest (India) Limited in the year 2004 and over 17 lac claims have been received. The Committee has already advertised the properties owned by the Golden Projects Limited and its group Companies as well as invited claim from the investors and more than one lac claims have been received. Therefore, the said sale committee should be permitted to continue with the sale of the assets of the Golden Projects Limited as well.
The management of the company through its counsel Mr. Turka has produced on record an application allegedly filed by the provisional liquidator in CP No. 60 of 2001, which proceedings led to an order passed by the Hon''ble Supreme Court constituting sale Committee. From the said application, it transpires that M/s. Golden Projects Limited has about 11 subsidiary companies and that the Golden Forest (India) Limited, Golden Projects Limited and their subsidiary companies are controlled and managed by one family known as "Syals" through A.L. Syal, R.K. Syal, his wife Neena Syal, his sister Pamila Syal, brother-in-law H.K. Sinha and another brother.
This Court constituted sale Committee consisting of the Official Liquidator and two Lawyers to be appointed by this Court, who shall associate a representative of the respondent- Company with them, to dispose of the assets of M/s. Golden Projects Limited and its associate Companies.
Whether the Order dated 05.09.2006 of Hon''ble Supreme Court in respect of assets of Golden Forest (India) Limited and its associate Companies is inclusive of the Golden Projects Limited is not free from doubt. But the fact remain that M/s. Golden Projects Limited and its associate Companies are also managed and controlled by the same family. The nature of investment and the issued therefrom are common to that the Golden Forest (India) Limited and Golden Projects Limited.
Therefore, to avoid contradictory and conflicting proceedings and keeping in view the fact that the sale Committee constituted by the Hon''ble Supreme Court has proceeded ahead in respect of sale of the Assets of the Golden Projects Limited and has also invited claim from the investors, I deem it appropriate to constitute the said sale Committee for the purpose of sale of assets of M/s. Golden Projects Limited and its associate Companies as well.
The Provisional Liquidator appointed by the Hon''ble Supreme Court is a former Judge of High Court and the other members are two former District Judges. The conduct of sale by such distinguished personalities shall invite more confidence of the effected parties than the sale Committee by this Court on 27.05.2010, therefore, in modification of the Order dated 27.05.2010, the sale Committee constituted by the Hon''ble Supreme Court vide Order dated 19.08.2004 in respect of sale of the assets of the Golden Forest (India) Limited shall be the dale Committee for the sale of the assets of Golden Projects Limited and its associate Companies as well.
Such sale Committee may take assistance from the representative of the Company, as it may consider appropriate, so that the sale process of the assets of the Company is completed expeditiously and obtain maximum price. The sale conducted by the Sale Committee shall be subject to confirmation by this Court.
Disposed of accordingly."
The aforementioned order was assailed by the Company by filing CAPP No. 2 of 2011, but the same was dismissed vide order dated 14.2.2011, which is reproduced herein under:-
"This appeal has been filed against an order dated 15.12.2010, passed by the learned Single Judge, allowing an application filed at the instance of a Committee, constituted by the Hon''ble Supreme Court on 19.8.2004, to deal with the properties of Golden Forest (India) Limited, a company under liquidation.
Heard counsel for the parties.
A perusal of the paper book indicates that this Court, on 27.5.2010, constituted a Sale Committee of Official Liquidator and two lawyers, to be appointed by the Court, to effect sale of the assets of the appellant i.e. Golden Projects Limited.
It is case of the appellant that the Golden Projects Limited is an independent Company from the Golden Forest (India) Limited. This plea was rejected by the learned Single Judge, by observing as under:-
"This Court constituted Sale Committee consisting of the Official Liquidator and two lawyers to be appointed by this Court, who shall associate a representative of the respondent-Company with them, to dispose of the assets of M/s. Golden Projects Limited and its associate companies.
Whether the order dated 05.09.2006 of Hon''ble Supreme Court in respect of assets of Golden Forests (India) Limited and its associate companies is inclusive of the Golden Projects Limited is not free from doubt. But the fact remains that M/s. Golden Projects Limited and its associate Companies are also managed and controlled by the same family. The nature of investments and the issues arising therefrom are common to that of Golden Forests (India) Limited and Golden Projects Limited.
Therefore, to avoid contradictory and conflicting proceedings and keeping in view the fact that the Sale Committee constituted by the Hon''ble Supreme Court has proceeded ahead in respect of sale of the assets of the Golden Projects Limited and has also invited claims from the investors, I deem it appropriate to constitute the said Sale Committee for the purposes of sale of assets of M/s. Golden Projects Limited and its associate Companies as well.
The Provisional Liquidator appointed by the Hon''ble Supreme Court is a former Judge of High Court and the other members are two former District Judges. The conduct of sale by such distinguished personalities shall invite more confidence of the effected parties than the Sale Committee to be constituted by this Court on 27.05.2010. Therefore, in modification of the order dated 27.05.2010, the Sale Committee constituted by the Hon''ble Supreme Court vide order dated 19.08.2004 in respect of sale of the assets of the Golden Forest (India) Limited shall be the Sale Committee for the sale of the assets of Golden Projects Limited and its associate Companies as well."
We feel that the order passed is perfectly justified. Lest there be contradictory finding by the Committees, it was felt desirable that let sale of the properties of the golden forest (India) Limited and the appellant be conducted by the same committee.
Counsel for the appellant has failed to show any prejudice which may be going to be caused to the appellant in terms of the order passed by the teamed Single Judge, under challenge. Except raising technical objections, which also were not proved on record, no argument has been addressed on merits to assail the findings given by the learned Single Judge.
Dismissed."
The aforementioned order was also assailed by the Company by filing Special Leave to Appeal (Civil) No. 20403 of 2011, but the same was dismissed in limine vide order dated 5.8.2011. The order dated 5.8.2011 reads thus:-
"Date: 05/08/2011 This Petition was called on for hearing today.
CORAM:
HON''BLE MR. JUSTICE P. SATHASIVAM
HON''BLE DR. JUSTICE B.S. CHAUHAN
For Petitioner(s) Mr. Shailendra Bhardwaj. Adv.
Ms. Aroma Sharma Bhardwaj.Adv.
For Respondents)
UPON hearing counsel the Court made the following
ORDER
Heard learned counsel for the petitioner and perused the relevant material.
We do not find any valid and legal ground for interference. The special leave petition is dismissed."
The proceedings in CP No. 115 of 2002 continued to remain pending and on 16.1.2013, this Court, in the presence of the counsel for the Committee and as well as the investors, fixed the matter to determine the issue whether M/s. Golden Project Ltd., i.e., respondent-Company is a subsidiary and/or sister concern of M/s. Golden Forests (India) Ltd. and as to whether the sale of assets and consequential confirmation of such sale is to be done by this Court or by the Delhi High Court in terms of the orders passed by the Hon''ble Supreme Court in the case of M/s. Golden Forests (India) Ltd. The order dated 16.1.2013 reads thus:-
"Present: Mr. Anand Chhibber, Senior Advocate with
Mr. Vaibhav Sahni, Advocate for the petitioner(s).
Mr.YS Turka, Advocate for the Company
Mr. AS Narang, Advocate for the Committee
Mr.PC Goyal, Advocate and
Mr. Ashok Jindal, Advocate for the applicants.
****
List for arguments on 01.05.2013 on the issue whether M/s. Golden Projects Ltd.-the respondent-Company is a subsidiary and/or sister concern of M/s. Golden Forests (India) Ltd. as it would determine whether the sale of assets and consequential confirmation of such sale is to be done by this Court or by the Delhi High Court in terms of the orders passed by the Hon''ble Supreme Court in the case of M/s. Golden Forests (India) Ltd.
Photocopy of this order be placed on the record of other connected matters(s)."
It would not be out of place to mention here that vide order dated 15.12.2010, this Court had only granted liberty to the Committee to undertake the task of selling the properties, but the sale of the properties was to be confirmed subject to the order of this Court.
This Court, vide order dated 16.8.2013, while noticing the order dated 25.7.2013 passed by the Delhi High Court observed that it would not be possible to form a definite opinion as to whether the Golden Projects Ltd. is a subsidiary of Golden Forests (India) Ltd., as the expression "subsidiary" is a well known legal connotation and unless its basic ingredients are satisfied, no such conclusion can be drawn. The order dated 16.8.2013 reads thus:-
"With reference to the previous order, it is pointed out by Mr. Narang that after remand by the Hon''ble Supreme Court, a Division Bench of the Delhi High Court vide order dated 25.07.2013 passed in WP(C) 1399/2010 (National Investor Forum Regd. Vs. Golden Forests India Ltd.) has dismissed the applications, seeking to establish that the Golden Projects Ltd. is a separate `legal entity'' different than the Golden Forest India Ltd. On going through the order passed by Delhi High Court or the orders of the Hon''ble Supreme Court referred to, it may not be possible to form a definite opinion that the Golden Projects Ltd. is a subsidiary of Golden Forests India Ltd.
The expression "subsidiary" is a well known legal connotation and unless its basic ingredients are satisfied, no such conclusion can be drawn.
List on 29.11.2013.
The respondent shall meanwhile place on record the relevant material to establish that Golden Projects Ltd. is a `subsidiary'' of Golden Forests India Ltd.
Photocopy of this order be placed on the record of other connected matters."
The aforementioned order was not challenged by the Company or by the Committee and had attained finality. Since time and again there has been reference to the order dated 5.9.2006 passed by the Hon''ble Supreme Court, it would be apt to extract the relevant portion of the order for determination of the question/issue raised in the present application, which reads as under:-
"44. Insofar as the properties of the companies mentioned at Sl.Nos.91-104 belonging to Golden Project and its associates and the properties of societies and trusts mentioned at Sl.Nos.105-110 are concerned, Mr. Jain states that he would seek instructions and file an affidavit if they can be taken as the properties of GFIL, within two weeks from today."
On perusal of the aforementioned Para 44 of the order, it appears that neither the Company nor the Committee had brought to the notice of the Hon''ble Supreme Court and this Court as to whether the properties mentioned at Sr.Nos.91-104 belonged to Golden Projects and its associates and as well as the properties mentioned at Sr.Nos.105-110 belonged to the Golden Forests (India) Ltd. or not. Even the Committee has also not made any efforts in this regard.
Mr. Atul V. Sood, Advocate appearing on behalf of the applicant submits that almost five years have elapsed, but the Company had not taken any steps to sell the properties of the Golden Forests (India) Limited and the investors are left in lurch. The sole idea for referring the matter to the Committee was to sell the properties so that the grievance of the investors, who had invested their hard-earned money, would have been vindicated by selling the properties belonging to the Golden Projects Ltd. He has further submitted that the Committee is taking the aid of the orders passed from time to time by Hon''ble the Supreme Court and as well as by the Delhi High Court and in view of such situation, the Committee has not even attempted to identify the list of investors of Golden Projects Ltd. and the properties of the Golden Projects Ltd. He has further submitted that the stand taken by the respondent Company by taking the aid of the orders where time and again there is a reference of Golden Forests (India) Ltd. and its subsidiary Companies or Group of Companies did not reckon and envisage the properties belonging to the Golden Projects Ltd. being the subsidiaries of the Golden Forests (India) Ltd. In this regard, he has cited Section 4 of the Companies Act, 1956. For the sake of brevity, Section 4, ibid, is reproduced herein below:-
"4. Meaning of "holding company" and" subsidiary". (1) For the purposes of this Act, a company shall, subject to the provisions of sub- section (3), be deemed to be a subsidiary of another if, but only if,--
(a) that other controls the composition of its Board of directors; or
(b) that other-
(i) where the first- mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respects as the holders of equity shares, exercises or controls more than half of the total voting power of such company;
(ii) where the first- mentioned company is any other company, holds more than half in nominal value of its equity share capital; or]
(c) the first- mentioned company is a subsidiary of any company which is that other'' s subsidiary."
Mr.A.S. Narang, learned counsel appearing on behalf of the Committee has raised the following submissions over and above the averments made in the reply filed on behalf of the Committee:-
a) It has been observed that the reply with regard to the efforts made by the Committee vis-a-vis identifying the list of investors and as well as the properties owned and belonging to the Golden Projects Ltd. is conspicuously absent. The entire thrust of the reply is pertaining to the properties owned by the Golden Forests (India) Ltd. and the nomenclature used is `Golden Forests Group of Companies''. The Committee has relied upon the order dated 15.10.2008, whereby it was authorised to take possession of all the properties owned by the respondent. It would not be out of place to mention here that the respondent in the aforementioned order was none else but Golden Forests (India) Ltd. The complete sale of the land, built-up property taken over by the Committee and sold has been annexed as Annexure R-5, which pertains to the properties owned by the Golden Forests (India) Ltd. and NOT by Golden Projects Ltd., except two properties of Golden Projects for which the Committee has sold the same as way back on 17.8.2007 and 16.3.2012, i.e., one before the order dated 15.12.2010 and one afterwards. Even the details of the sale proceeds of the said land have also not been disclosed, though the bid amount has been mentioned, but no efforts has been made to bring it to the notice of this Court, nor any application has been filed in this Court for seeking confirmation of the said sale, which was required to be filed in pursuance to the order dated 15.12.2010 and even after having passing of the order by the Delhi High Court and as well as the impleadment at their behest, which attained finality upto the Hon''ble Supreme Court, as the same was assailed by the Company, namely, Golden Projects Ltd.
b) In paragraph 10 of the reply, it has been mentioned that apart from the properties of the Golden Forests (India) Ltd., properties belonging to Golden Tourists Resorts and Developers Ltd. and Super Bricks Ltd. were also auctioned and sold at that time. The reply is completely silent with regard to the steps taken in respect of properties belonging to M/s. Golden Projects Ltd. sold after the order dated 15.12.2010, except the one referred to in preceding para. The Committee has also enclosed copy of the auditor''s report, which pertained to the properties belonging to the Golden Forests (India) Ltd.
c) On going through the audit report, it is borne out that huge amount of money is being spent towards securing of the property belonging to the Golden Forests. As per the audit report as on 31.3.2014, a sum of Rs. 44,36,932/- has been spent towards the security service charges, besides other expenses which I need not to deliberate upon. It appears that the money realised by the Committee with regard to the property of Golden Forests (India) Ltd. is lying deposited in the F.D. Rs, though incurring interest, but there are enormous heavy expenses in securing the properties belonging to the Golden Forests (India) Ltd. It appears that the Committee has also been assigned heavy and arduous task to look after the affairs of the Company belonging to the Golden Forests (India) Ltd.
I have heard the learned counsel for the parties and appraised the paper book and as well as their arguments and found that the application deserves to be allowed for the following reasons:-
i) Taking a clue from the auditor''s report, it appears that the Committee has been assigned the heavy task to secure the properties belonging to Golden Forests (India) Ltd. Two of the members of the Committee, in my view, have by now attained the age of 89 and 84 years and, thus, it would not be in the fitness of things to permit the Committee to continue with the management and the sale of the properties belonging to the Golden Projects Ltd.
ii) The order dated 16.8.2013, ibid, has not been assailed by the Committee. The aforementioned order has been passed by taking into consideration the order dated 25.7.2013 passed by the Delhi High Court in W.P.(C) 1399 of 2010, which came to be passed, whereby order dated 20.1.2010 passed by the Committee had been challenged. By that time, the Sale Committee had not been assigned the task to sell the property belonging to Golden Projects Ltd. The Sale Committee, which had moved the application bearing CA No. 430 of 2010 and sought the impleadment, as noticed above, invited direction to deal and sell the properties belonging to the Golden Projects Ltd. vide order dated 15.12.2010, but subject to confirmation of sale by this Court;
iii) The order dated 16.8.2013 and orders prior thereto have also not been brought to the notice of the Delhi High Court. The affidavit/reply filed on behalf of the Sale Committee is conspicuously absent with regard to the steps being taken to identify the properties belonging to the Golden Projects Ltd. and as well as list of investors, except two properties, one which has been sold after the order dated 15.12.2010 and it has not cared to move any application for seeking confirmation of the sale. Had that exercise been done, perhaps the Court would have had an occasion to order for disbursement of the amount to the investors by passing an order in the main company petition since the petition had already stood admitted;
iv) The Legislature in its wisdom has clearly defined the definition of word "subsidiary" in Section 4 of the Companies Act, 1956, but there is no ambiguity to the same. No such evidence or document has been placed on record to show that the Company, namely, Golden Projects Ltd. is a subsidiary of Golden Forests (India) Ltd., the details of which have been given at Sr.Nos.91-104. Similarly, the subsidiary companies belonging to Golden Forests (India) Ltd. are figuring at Sr.Nos.1-90;
v) It is a settled law that majority share holding of the subsidiary company is held by holding company. Even otherwise, had this Committee been under the impression that the property belonging to Golden Projects Ltd. is the subsidiary or Group of Companies of Golden Forests (India) Ltd., it would have been mentioned in its application bearing No. 430 of 2010.
Thus, in my view, the Golden Projects Ltd. is a separate and a legal juristic entity and is not subsidiary of Golden Forests (India) Ltd. The Sale Committee probably is under the wrong impression that as and when any observation has been made by the Hon''ble Supreme Court while passing the order with regard to the properties of Golden Forests (India) Ltd.by using the nomenclature of Group of Companies, the Golden Projects Ltd. would also fall in that category. The position is otherwise. On going through the orders passed from time to time by the Delhi High Court or the Hon''ble Supreme Court, there has not been any adjudication whether the Golden Projects Ltd. is a subsidiary or an independent/separate entity. Until and unless the aforementioned question is not decided, this Court would not have addressed the issue for the purpose of deciding the application in hand.
Even the publication done by the Joint Registrar in transferring the cases was in respect of cases belonging to the Golden Forests (India) Ltd. and not that of the Golden Projects Ltd. This Court vide order dated 7.2.2008 did not transfer the matters pertaining to the respondent-Company, i.e., Golden Projects Ltd. For the sake of brevity, the order dated 7.2.2008 is reproduced herein below:-
"This is an Application for revival of the Company Petition No. 115 of 2002 which was adjourned sine die vide order dated 06.12.2004. It has been mentioned that the Company Petitions relating to the Respondent- Company pending in this Court have not been transferred to the Hon''ble Supreme Court by orders of the Hon''ble Supreme Court and the petitions be revived for further proceedings.
This application is allowed. Let C.P. No. 115 of 2002 be listed before the Court along with all connected matters.
List on 28.02.2008"
vi) This Court cannot remain oblivious of the plight of the investors, who had invested their hard-earned money in the project, which the respondent-Company had projected by giving rosy picture. They have not been able to recover their hard-earned money despite the fact that the litigation is pending in various courts for more than a decade;
vii) There is already order of admission in the company petition bearing No. 115 of 2002 and the subsequent proceedings vis-a-vis winding up order is yet to be passed;
viii) There is another aspect to be looked into. This Court vide order dated 20.11.2009 directed the Official Liquidator to summon the record from the office of Registrar of Companies and as well as the details of founding and subsequent Directors of the Company along with last two pending annual returns. In pursuance to the aforementioned orders, the Official Liquidator had submitted his inspection report vis-a-vis the records from the office of the Registrar of Companies and after hearing the learned counsel for the parties, the Court, vide order dated 27.5.2010, granted permission to the respondent-Company to dispose of the part of the assets owned by it to discharge its debt liability and in that regard directed the Company to appoint a committee consisting of Official Liquidator and two Lawyers. The orders dated 20.11.2009, 22.01.2010 and 27.5.2010 read thus:-
Order dated 20.11.2009:-
"Present: Mr. Anand Chhibber, Advocate.
Mr. R.B.S. Jain, Advocate.
Mr. Y.S. Turka, Advocate for the Respondent-Company
As prayed for by counsel for the respondent- Company, adjourned to 22.01.2010.
In view of the fact that the same company is the company-in-default in all the connected matters, learned counsel representing the respondent-Company in this case, is directed to accept notice and have instructions from the said Company in all the connected cases.
The Official Liquidator is also directed to summon records from the office of the Registrar of Companies as well as the details of the founding and subsequent Directors of the Company, along with last two pending annual returns of the Company.
Photocopy of this Order be placed on the record of connected matters."
Order dated 22.01.2010:-
"Inspection report of Registrar of companies furnished by the Official Liquidator, is taken on record.
As prayed for by the counsel for the parties, adjourned to 25.03.2010 to enable them to furnish better particulars on record.
Counsel for the company in default shall also place on record the details of the land(s) owned by it."
Order dated 27.05.2010:-
"Having heard learned Counsel for the parties for some time, it appears that the interim directions earlier issued needs to be modified to the extent that the respondent-Company may be permitted to dispose of a part of the lands owned by it to discharge its debt liability, subject to the condition that the entire sale process is supervised by a Committee consisting of the Official Liquidator and two Lawyers to be appointed by this Court, who shall also associate a representative of the respondent-Company with them.
List on 13.08.2010 to enable learned Counsel for the Respondent-Company to furnish details as to which parcel of land the Company wants to be disposed of first."
ix) As I have already noticed above, this Court had allowed the application of the Committee to be impleaded as respondent No. 2 and as well as the fact that the properties mentioned at Sr.Nos.91-104 were not part of the Golden Forests (India) Ltd. The said order was passed in the presence of the counsel representing the Committee;
x) I have seen the record inspected by the Official Liquidator from the office of the Registrar of Companies, vis-a- vis property of respondent-Company (Golden Projects Ltd.), i.e., the annual returns, share holding etc. etc. and found that the Golden Projects Ltd. is not a subsidiary of Golden Forests (India) Ltd. The aforementioned aspect has not been reflected in any my orders, much less, pondered upon by ANY COURT till date, much less, brought to the notice of the Committee. In my view, had this order been brought to the notice of the Court, probably the Committee would, on its own, move an application seeking modification of the order dated 15.12.2010;
(xi) The contention raised by Mr. Narang that since time and again the nomenclature used in the orders passed from time to time has been Golden Forests (India) Ltd. and its Group of Companies would also envisage the properties at Sr.Nos.91- 104 belonging to Golden Projects Ltd. to be of Golden Forests (India) Ltd. is not sustainable for the reasons aforementioned;
(xii) It is strange that the Sale Committee is contesting the present application tooth and nail, rather, keeping in view the age of the members of the Committee, the members of the Committee ought to have volunteered to surrender the task of selling the properties belonging to Golden Projects Ltd.
In view of what has been observed above, the order dated 15.12.2010 is hereby modified with the following directions:-
a) The Committee appointed by the Hon''ble Supreme Court in Golden Forests (India) Ltd. shall no longer be the Sale Committee of the properties belonging to Golden Projects Ltd. and its subsidiaries. I deem it appropriate to appoint the following members as the members of the Sale Committee:-
(1) Mr. Justice Jasbir Singh (Retd.) as Chairman; and
(2) Priya Bhushan and Associates, Chartered Accountant from the panel of the Official Liquidator, as member.
Their remuneration is fixed as Rs. 1,25,000/- and Rs. 1,00,000/- per month respectively by capping limit upto 8 months, to be paid from the sale proceeds of the properties of the Golden Projects Ltd. already sold and the interest incurred from the FDRs. Registrar Judicial is directed to communicate the decision of this order to the members of the Committee and seek their consent.
b) The aforementioned Sale Committee shall, immediately, on receipt of the order take over the assets both movable and immovable of the Golden Projects Ltd. from the date they assume charge and undertake the task to identify the list of investors and the properties of the Golden Projects Ltd.;
c) The newly appointed Committee is further directed to expeditiously, preferably within eight months, after identifying the property belonging to the Golden Projects Ltd. and its subsidiaries, put the same for sale after causing wide publication in the Newspapers and making an effort to get highest price, so that the grievance of the investors is redressed.
d) The Sale Committee already appointed vide order dated 15.12.2010 is directed to hand over the entire record, i.e., books of accounts, FDRs, the proceeds of the properties sold, if any, pertaining to the Golden Projects Ltd. and its subsidiaries to the newly considered Committee;
e) The Committee is further directed to periodically report to this Court regarding the steps taken for identification, sale and sale proceeds, if any in respect of the properties belonging to the Golden Projects Ltd. and its subsidiaries;
f) The Committee can also issue an interrogatory to the Ex- Directors/Management of the respondent-Company in case they have any difficulty in ascertaining the identity of the Company.
The application stands disposed of accordingly.