Pankaj Paliwal vs M/S Vian Infrastructure Ltd & Ors on 14 November, 2018

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Delhi High Court

Pankaj Paliwal vs M/S Vian Infrastructure Ltd & Ors on 14 November, 2018

1. This application is filed by Mr.Shashi Kumar under Rule 9 of the Company Court Rules, 1959 and section 446 of Companies Act read with section 151 CPC seeking a direction that the Official Liquidator may not take action for auctioning/selling the property/plot No.D1-67, Sector-2, Area 120 Sq.Yards situated in village Sheelki Dungri Tehsil Chaksu, District Jaipur, Rajasthan.

2. The case of the applicant is that the property in question was purchased by the applicant on 10.12.2009 by a registered sale deed. In August 2018 the applicant came to know regarding pendency of the present case and regarding auction proceedings. It is pleaded that the Official CO.Pet.178/2012 Page 1 Liquidator has not brought the correct and complete facts before this Court and is seeking to get the entire land of the respondent company including the land of the applicant auctioned through public auction. The property in question was published for sale by a composite sale notice issued on 31.1.2018. It is pleaded that the applicant is the owner of a plot measuring 120 sq.yards by means of a registered sale deed and the land of the applicant cannot be auctioned alongwith the land of the respondent company.

3. The Official Liquidator has filed a reply. In the reply the OL has pointed out that the present company was ordered to be wound up by this court on 25.4.2012. In 2008 an investigation was undertaken by Economic Offences Wing (Crime Branch) Mandir Marg, New Delhi against the respondent company and its Directors who were accused of cheating the investors who had invested their money in various projects in the company including the project located at Sheelki Dungri Tehsil Chaksu, District Jaipur, Rajasthan. A chargesheet was filed by EOW where it came to light that the land forming part of the Jaipur project located at Tehsil Chaksu, District Jaipur, Rajasthan had been purchased by the respondent company. The land which is subject matter of the present application forms part of this land. The ACMM pursuant to filing of the chargesheet attached the said property. After appointment of the OL, the OL also has taken over possession of the land which is owned by the company at Tehsil Chaksu, District Jaipur, Rajasthan. ITCOT Consultancy Services were appointed as a Valuer by this court by order dated 4.9.2013. They have evaluated the land. The valuation report states that the said property is registered with the office of Sub Registrar/Revenue Authority in the name of the respondent company. The land is not demarcated. As per the revenue records the property stands CO.Pet.178/2012 Page 2 registered in the name of the respondent company.

4. I have heard learned counsel for the parties. Learned counsel for the Official Liquidator has submitted that the present application cannot be allowed and the sale deed is a fraudulent document and cannot be relied upon for the following reasons:-

(i) The land in question has not been demarcated. It is an agricultural land and is lying vacant. An area of about 1.85 hectares cannot be utilised by sale to pay off the debts of the respondent company on account of this erroneous claim filed by the applicant claiming 120 sq.yards of the land.

(ii) It has been pleaded that as per the photocopy of the sale deed which is placed on record the sale deed was executed by one Shri Rajeev Sharma and Shri Vikas Dangi through authorised signatory Shri Deepak Chaudhary. It is submitted that these two gentlemen are unknown to the company. There is no resolution of the Board of Directors of the respondent company authorising the said signatories for selling or alienating the said land.

(iii) It is further pleaded that alongwith the sale deed some receipts have been filed. As per the Sale deed a paltry figure of Rs.1,20,000/- has been paid. The receipts also do not tally with the said sum of Rs.1,20,000/-.

5. A perusal of the copy of the sale deed shows that the description of the authorised signatory is stated as follows:-

"This sale deed is executed today on 10.12.2009 by M/s Viyan Infrastructure Ltd., 2-H, D.C.M. Building, 2nd floor, 16, Barakhamba Road, New Delhi through authorized signatory Sh. Rajeev Sharma S/o Sh. J.P. Sharma and Sh. Vikas Dangi s/o Sh. Dharampal Chaudhary through present authorized signatory Sh. Deepak Chaudhary S/o Sh.Samsher Singh, aged about 23 years caste JAAT do has been referred as "Seller" first party in the present sale deed."

CO.Pet.178/2012 Page 3

6. Hence, it is not even clear as to who actually is the authorised signatory who has executed the documents. Three names are given namely of Shri Rajiv Sharma, Shri Vikas Dangi and Shri Deepak Chaudhary. Which of these is authorised signatory is not known?

7. There is no authority placed on record for any of the said persons mentioned as the Authorised Signatories of the respondent company, namely, Shri Rajiv Sharma. Shri Vikas Dangi and Shri Deepak Chaudhary. The position they were holding in the company is not known. There is no resolution of the Board of Directors authorising them to sell the land of the respondent company. The applicant is completely unaware of these important facts.

8. Though the sale deed mentions that a consideration of Rs.1,20,000/- has been paid to the respondent company but there are no details as to how this payment was made. The OL has specifically raised an objection that the sale deed does not record how the payment was made. The applicant after having filed the application has filed copies of three receipts of the respondent company showing receipt of payment being receipt dated 19.8.2006 for Rs.14,700/-, receipt dated 17.10.2006 for Rs.73,500/- and dated 14.11.2007 for Rs.7,350/-. The receipts allegedly show payment of Rs.95,550/- for a alleged sale consideration of Rs.1,20,000/-. The last receipt is dated 14.11.2007 whereas the sale deed was executed on 10.12.2009.

The following facts clearly emerge.

Firstly, the person who has signed the sale deed is not authorised by the respondent company to sell the land in question.

CO.Pet.178/2012 Page 4 Secondly, the sale deed is allegedly executed and registered after an investigation had commenced by the Economic Offences Wing in 2008. The alleged sale deed is executed just 11 days before the attachment order passed by the ACMM, Patiala House Courts, New Delhi. It appears that the sale deed was executed to defeat the proceedings.

Thirdly, the proof of making payments of consideration to the respondent company is sketchy and unreliable. No proof was filed alongwith the application. Subsequently, copies of three receipts have been filed for a total of Rs.95,550/- whereas the total sale consideration is for Rs.1,20,000/-. The receipts are much prior to in time than the execution of the Sale Deed. The receipts give the cheque Numbers and the name of the bank from which payments were allegedly made by the applicant. However, no Statement of the Bank concerned has been filed to show that payments have been received by the respondent company. The receipts do not inspire confidence and cannot be taken into account.

Fourthly, the OL has specifically relying upon the valuation report prepared by the Authorised Valuer pointing out that the land in question remains in the name of respondent company in the revenue records. The applicant has not claimed that the land is mutated in his favour in the revenue records.

Fiftly, the land in question is a consolidated land measuring 1.85 hectares. There is only one solitary case received by the OL where it is claimed that the sale deed of 120 sq.yards was executed in favour of the applicant/claimant. There is no other individual claim of sale of plot in this manner. The land is also not demarcated and is agricultural land.

9. Keeping in view the aforesaid facts, I may now look at certain CO.Pet.178/2012 Page 5 provisions of the Companies Act, 1956, which reads as under:

Section 48 - Execution of deeds (1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place either in or outside India.

(2) A deed signed by such an attorney on behalf of the company and under his seal where sealing is required, shall bind the company and have the same effect as if it were under its common seal.

............

Section 291 - General Powers of Board (1) Subject to the provisions of this Act, the Board of directors of a company shall be entitled to exercise all such powers, and to do all such acts and things, as the company is authorised to exercise and do:

Provided that the Board shall not exercise any power or do any act or thing which is directed or required, whether by this or any other Act or by the memorandum or articles of the company or otherwise, to be exercised or done by the company in general meeting:

Provided further that in exercising any such power or doing any such act or thing, the Board shall be subject to the provisions contained in that behalf in this or any other Act, or in the memorandum or articles of the company, or in any regulations not inconsistent therewith and duly made there under, including regulations made by the company in general meeting.

(2) No regulation made by the company in general meeting shall invalidate any prior act of the Board which would have been valid if that regulation had not been made.

............

Section 293 - Restrictions on powers of Board CO.Pet.178/2012 Page 6 (1) The Board of directors of a public company, or of a private company which is a subsidiary of a public company, shall not, except with the consent of such public company or subsidiary in general meeting, -

(a) sell, lease or otherwise dispose of the whole, or substantially the whole, of the undertaking of the company, or where the company owns more than one undertaking, of the whole, or substantially the whole, of any such undertaking;

................

10. A company can only act through the authorisation received from the Board of Directors while effecting sale of an immovable property. In the present case the applicant has not been able to show that the signatories to the sale deed are officers of the respondent company or have any authorisation from the Board of Directors of the respondent company to effect a sale in favour of the applicant and to execute registered conveyance deed. There is no proof that the respondent company received the consideration for sale of the land. Other factors noted above also throw suspicion on the bona fide and genuineness of the sale transaction. The sale deed relied upon by the applicant cannot be relied upon.

11. It is manifest that the above sale deed relied upon by the applicants have been allegedly executed to hoodwink the respondent company and to fraudulently part with the assets of the company.

12. In my opinion, the applicant lacks bona fide. The alleged sale deed is an illegal and a sham document created for the purpose of grabbing the property of the company.

13. Accordingly, in my opinion, the sale transaction relied upon by the CO.Pet.178/2012 Page 7 applicant cannot be relied upon. The present application is accordingly dismissed.

CO.PET.178/2012

List on 22.11.2018.


                                         JAYANT NATH, J
NOVEMBER 14, 2018
n
corrected and released on 26.11.2018




CO.Pet.178/2012                                                   Page 8

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