Delhi High Court - Orders
Pankaj Paliwal vs M/S Vian Infrastructure Ltd & Ors on 8 February, 2024
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
$~C6 & C7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 178/2012 & CO.APPL. 1896/2012, CO.APPL.
2410/2012, CO.APPL. 2411/2012, CO.APPL. 2412/2012,
CO.APPL. 2414/2012, CO.APPL. 2415/2012, CO.APPL.
3177/2016, CO.APPL. 1896/2017, CO.APPL. 1898/2017,
CO.APPL. 1900/2017, CO.APPL. 1902/2017, CO.APPL.
2063/2017, CO.APPL. 64/2018, CO.APPL. 66/2018,
CO.APPL. 835/2018, CO.APPL. 991/2018, CO.APPL.
1098/2018, CO.APPL. 1038/2019, CO.APPL. 1299/2019,
CO.APPL. 1301/2019, CO.APPL. 503/2021, CO.APPL.
800/2021, OLR 590/2014, OLR 594/2014
PANKAJ PALIWAL ..... Petitioner
Through:
versus
M/S VIAN INFRASTRUCTURE LTD & ORS..... Respondents
Through: Ms. Ruchi Sindhwani, Sr.
Standing Counsel with Ms.
Megha Bharara, SC for OL
Mr. Rahul Sharma, Mr. Ayush
Bhatia & Mr. Shubham
Shekhar, Advocates
Mr. Aman Nandrajog, Mr.
Arjun Nanda & Mr. Yash
Gupta, Advocates for applicant
in CA No. 503/2021
Mr. Arpit Shukla, Mr. Gargi
Srivastava & Ms. Mitali
Chauhan, Advocates for
applicant in CA No. 477/2021
7
+ CRL.O.(CO.) 14/2012
M/S VIAN INFRASTRUCTURE LTD ..... Petitioner
Through:
versus
SH. SURYA KIRTICHAND THAPAR & ORS..... Respondents
Through: Ms. Ruchi Sindhwani, Sr.
Standing Counsel with Ms.
Megha Bharara, SC for OL
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:04
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 08.02.2024 CO.APPLs. 277/2017, 454/2017, 559/2017, 746/2017, 1367/2017, 1475/2017, 1801/2017, 1895/2017, 1901/2017, 65/2018, 1298/2019, 1300/2019 & 477/2021 in CO.PET. 178/2012
1. The present applications have been filed by the applicants/claimants with regard to their respective claims relating to the plots of land/properties out of the large chunk of land belonging to the respondent/company (in liquidation) at Haridwar, State of Uttarakhand.
2. Although a request is made on behalf of these applicants that Mr. Ashwin Chaudhary, Advocate is unwell and is not appearing in Court today, this Court finds that in view of the previous direction of this Court dated 28.11.2023, the reliefs claimed in these applications are no longer sustainable. Evidently, the claims of the respective parties in each of these applications have already been considered by the Official Liquidator and appropriate directions have been passed. In case, any of the applicants are aggrieved of the impugned rejection or partial admission of their claims, they are at liberty to file a statutory appeal in terms of Rule 164 of the Companies (Court) Rules, 1959.
3. The said applications stand disposed of accordingly. CO.APPLs. 785/2017, 1368/2017, 1476/2017, 1897/2017, 1899/2017 & 63/2018 in CO.PET. 178/2012
4. These applications have been moved on behalf of the applicants seeking certain directions against the Official Liquidator to not proceed with the auction of certain properties claimed to be belonging to them comprised in the land belonging to the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:04 respondent/company (in liquidation) at Haridwar.
5. Learned Senior Standing Counsel appearing for the Official Liquidator submits that the applicants may instead be directed to file their respective claims supported by relevant documents with the Official Liquidator, which shall be considered in accordance with law.
6. At this stage, learned counsel appearing for the applicant in CA No. 477/2021, Mr. Saurabh Bhatnagar S/o Mr. R.K. Bhatnagar, submits that his case is entirely different inasmuch as he had not purchased the property in question, which is now under the control of the Official Liquidator from the respondent company (in liquidation) or for that matter from Mr. Sanjeev Malhotra. Be that as it may, a decision on the said aspect would be in the domain of the Official Liquidator.
7. Accordingly, the present applications are disposed of with the direction to the applicants to submit/file their respective claims supported by relevant documents with the Official Liquidator within four weeks from today, which shall be decided by the Official Liquidator as per the law.
CA 137/20208. This application is moved on behalf of the Official Liquidator seeking certain directions against Mr. Sanjeev Malhotra, Ex-Director of the company (in liquidation).
9. It is borne out from the record that a Provisional Liquidator attached to this Court was appointed on 25.04.2012, to take over the assets of the company and vide order dated 24.04.2019 the company has been ordered to be wound up and the Official Liquidator has been appointed to take charge of the winding up proceedings.
10. It appears that during the course of the winding up proceedings, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:04 names of four Ex-Directors of the company (in liquidation) surfaced and notices were issued to each one of them to file statement of affairs and reveal/ disclose the details of the assets of the company. In the interregnum the Economic Offences Wing of the Delhi Police also furnished certain documents with regard to assets of the company (in liquidation) and it was found that the company was having some land at village Bedhadi, Rajputan, District Roorkee, Haridwar, State of Uttrakhand. It is borne out from the record that possession of the said property was taken over by the Official Liquidator on 17.11.2012 in the presence of a Patwari.
11. Suffice to state that during the course of winding up proceedings, when the aforesaid property was sought to be e- auctioned/sold, several applicants moved applications claiming to have entered into agreement to sell in respect of certain portions of the large chunk of land belonging to the company (in liquidation) with Mr. Sanjeev Malhotra and agitating that they have not received the entire sale consideration due to them.
12. In response to the notice issued to Mr. Sanjeev Malhotra, Ex- Director, the Official Liquidator received a letter dated 11.08.2017 from him, whereby the following documents were submitted by way of handwritten letter:
(1) Certificate of Axis Bank Limited dated 13.02.2010 to the effect that an amount of Rs. 20,08,40,000/- had been transferred to the Savings Bank account of Mr. Sanjeev Malhotra from the Axis Bank account of company (in liquidation): Rs. 15,37,40,000/-
between the period 13.09.2006 to 13.02.2010 and Rs. 4,71,00,000/- between the period 08.12.2006 to 13.02.2010 (2) Certified true copy of resolution passed at the meeting of Board of Directors of respondent company (in liquidation) on 28.08.2006 that inter alia authorized and empowered Mr. Sanjeev Malhotra to buy or sell properties in his individual name initially and later transfer the title of the land to the company, as and when, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:04 required by the latter and do all such acts necessary for execution of sale deed, registration, stamp duty etc. (3) Copy of the Memorandum of Understanding dated 12.07.2006 between company (in liquidation) through its Director Mr. Surya Thapar as first party and Mr. Sanjeev Malhotra as second party apart from a separate „Developers Agreement‟ so as to carry out resolution dated 28.08.2006 in all legal and practical manner.
13. A bare perusal of the aforesaid documents bring out that Mr. Sanjeev Malhotra had been authorized to buy about 350 to 500 bighas of land in the State of Uttarakhand with an upper ceiling of Rs. 8,60,000/- per bigha (816 Square yards is equivalent to one Bigha in Uttarakhand). Pursuant to the aforesaid resolution dated 28.08.2006 and the Memorandum of Understanding as also the developers agreement dated 12.07.2006, there was a buying spree of land from the farmers at various places, but evidently some were paid the total amount of sale consideration while others were paid only token or part payment, and such farmers/claimants are now up in arms against the company (in liquidation), seeking appropriate relief in the nature of execution of the sale deed, payment of the remaining amount of sale consideration or cancellation of sale deed/agreement to sell, as claimed in the respective applications, some of which have been disposed of hereinabove by this Court today.
14. A short prayer is made in the application by the OL that Mr. Sanjeev Malhotra be directed to refund the amount of Rs.20,08,40,000/- that had been received by him from the respondent company (in liquidation) with interest OR in the alternative to transfer the clear title of about 232.2 bighas of land @ Rs8,60,000/- per bighas in the name of the respondent company (In liquidation).
15. During the course of arguments, learned Senior Standing This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:04 Counsel for the Official Liquidator referred to the statement of Mr. Sanjeev Malhotra, who was examined in the Court on 28.08.2019 and 30.08.2019. It would be apposite to reproduce the statement made by Mr. Sanjeev Malhotra before this Court on 28.08.2019 in toto, which reads as under:-
"Ques: Were the MOU entered into between you and the Company?
Ans: In 2006, I, myself and the Company entered into an MOU to aggregate somewhere around 500 Bighas of land on the National Highway, Haridwar. Certain conditions were laid down as for 500 Bighas of land, the Company had to give Rs.8,60,000/0 per Bigha failing which I have to pay the Company double the amount. Ques: To clarify, the Company was to pay to you Rs.8,60,000/- per Bigha irrespective of what your purchased it for? Ans: I have to collect Rs.8,60,000/- per Bigha to aggregate the land?
Ques: What do you mean by "Aggregate the land"? Ans: I have to collect 500 Bighas of land and sell the same to the Company.
Ques: How much land did you purchase?
Ans: Approximately 136-137 Bighas of land was purchased by registered sale deed.
Ques: Did you enter into any agreements to sell as well? Ans: Yes.
Ques: How much?
Ans: I have entered into agreements to sell with respect to 49 Bighas of land.
Ques: How much money was paid at the time of entering into these agreements to sell?
Ans: There are different farmers, having several members in the family. We used to give them token and then they would come for the Registry.
Ques: How much was the token amount given by you? Ans: Around Rs.2 Crore 75 lacs while entering into the agreement to sell.
Ques: Are you to possession of these agreements to sell? Ans: I do not have any document. All the documents are in the possession of the Company.
Ques: When were they handed over to the Company? Ans: The documents were handed over to the Company in 2006- 2007.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 Ques: Do you have any proof of handing over the documents to the Company?
Ans: Yes. I am not carrying all the receipts but I can show you one or two. (One is handed over in Court) Patwari used to give me the receipt.
Ques: Where are the signatures of the Company on this document? Ans: Patwari used to collect document. I do not know. Ques: Where are the agreements to sell?
Ans: I can produce the Photostat copies.
Ques: Where are the originals?
Ans: I do not have any original copy. The Company has taken all the originals from me in 2006-2007. They have given me the certificate after taking the certificate that money has been utilised to purchase for what they were required to purchase. I handed over the originals to the Company on the payment of Rs.8,60,000/- per Bigha.
Ques: Why did you hand over agreements to sell which have not fructified into the registered sale deed?
Ans: The Company was supposed to give me around Rs.43 Crores to complete the project. They gave me around Rs.20 Crores not in one go but after checking and verifying every single document.
Ques: Can you tell me in how many instalments you received these Rs.20 Crores?
Ans: Rs.20 Crores were handed over to me through a number of transactions and through cheques. I do not have the record at the moment to indicate as to in how many instalments the money was received by me. The details of such transactions have already been placed by me on the record.
Ques: Where are the registered sale deeds with respect to 137 Bighas of land which you say that you purchased by the sale deed? Ans: Registered sale deeds were kept by the Company in good faith with a promise to return the same once the land was transferred back to the clients of the Company. (Volunteer) However, the same has not been done by them.
Ques: I put to you that this is incorrect?
Ans: No, this is correct.
Ques: Do you have any proof of handing over the registered sale deed in your name to the company?
Ans: I am saying that I have given them. I can write it on a stamp paper. I can get a certificate from the concerned department. Ques: You were required to transfer the property in the name of the Company. What purpose would it serve to hand over a registered sale deeds in your name to the Company?
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 Ans: It was due to the Ceiling Act, the registries have been done in my name and in my relatives names. The Company has already given me a certificate to the effect that due to the land Ceiling Act, registries cannot be done on their name and will be done in my name only.
Ques: What would the Company do with a registered sale deed in your name? Why would the Company keep it?
Ans: The Company was supposed to develop a project and for that reason, the documents were taken by the Company. They have already entered into a developer agreement in 2007 as well as in 2009. These documents are also on record.
Ques: That is not relevant to what I am asking. Has no part of this land been transferred by you to anybody?
Ans: I have transferred around 264 registries to the Company‟s clients.
Ques: Who instructed you to transfer the land to the people you transferred?
Ans: The Company.
Ques: Do you have any written instructions from the Company? Ans: They used to send me the mails/written letters.
Ques: Can you produce any proof of the instructions with respect to 264 registries? Are they on record?
Ans: I undertake to file the mails received by the Company in respect of 364 sale deeds executed by me.
Ques: What is the aggregate of the land of these 264 sale deeds that you have executed.
Ans: Approximately 90 Bighas has been transferred by me through 264 registered sale deeds. (volunteer), when I was registering the land on their instructions. I have to leave the waste area also. Ques: In Uttarakhand, what is the measure of a Bigha? Ans: In Haridwar, 816 square yards is equal to a Bigha.
Ques:1 am showing you Annexure D of the affidavit, which has been filed by you, which according to you, is a list of the 264 sale deeds executed by you. I put to you that the total land in this document does not total to 90 Bighas. It does not total beyond 35 Bighas.
Ans: It is coming around 52 Bighas on a rough calculation.. When you take out an average minimum of 120 square yards and maximum 200 square yards as shown in this list, it comes to around 55 Bighas.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 Ques: Do you have details with respect to 264 sale deeds entered into on behalf of the Company?
Ans: I have already placed it on the record.
Ques: Please tell, what you have transferred. In your affidavit, you claim to have 264 sale deeds. When we calculate, it does not come to the figure that you are stating. I want to know what is the total land area you sold through 264 sale deeds.
Ans: These are khasra numbers which I have purchased. I have written on every page, the area of plot in front of every name. I state that I have quickly calculaed the area as given in Annexure D along with my affidavit and Approximately the area comes to 53 to 55 Bighas. However, I do submit that this is only a rough calculation as a detailed calculation will take about half an hour. I also state that the wastage in terms of roads as well as park will have to be excluded in the calculation of this area.
Ques: Are you in a position to give us documents with respect to sale deeds entered into by you?
Ans: The sale deed registries were handed over to the Company and the Company handed over them to the clients.
Ques: Did you enter into the agreement in your personal name or in the name of the Company.
Ans: The agreements were executed in my name in my personal capacity and not on behalf of the Company, (Vol.) This was done on account of the Land Ceiling Act that had come into force in the state of Uttarakhand and this action was pursuant to the directions issued by the Company.
Ques: To understand, you are saying you purchased property in your name and thereafter transferred it from your name to the name of the purchasers, as mentioned in Annexure 'D', Ans: Yes.
Ques: Do you not have any proof of passing the title or title document to the Company?
Ans. I can provide you the Photostar copies in this regard.
Ques: Do you have any proof of passing the title in the name of the Company or the title document in the name of the company? Any kind of acknowledgment, mails etc. Ans: I have no proof of having handed over the original documents to the Company. I only have receipts, one of which I am showing in the Court today, which was issued by the Company Patwari's official staff.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 Ques: You have purchased 137 Bighas of land. As per your affidavit and the MOU, you have transferred it in the name of the Company at Rs. 8,60,000/- per Bigha. Is it correct? Ans: Yes Ques: Therefore, out of Rs 20 Crores that you received from the Company, you spent Rs. 11 Crores in the purchase of this property. Ans: Again we have to focus on the MOU and we had to purchase 500 Bighas of land at the rate of Rs. 8,60,000/- You are only calculating 137 Bighas but if yoni calculate 500 Bighas, the company was supposed to give me 43 Crores and then only this project's average would come to Rs.8,60,000/-. If you are going for less land then the average will be on the higher side.
Ques: Do you have any copies of the registered sale deeds? Ans. I have already put that on the Official Liquidator's office record. The photocopies of the record which I had, I had already supplied them. I have given them in the CD, with complete details.
Ques: Are you in a position to file it in this Court? Ans.: Yes, I am ready to file the photocopies of the sale deeds before this Court.
Ques: This compilation of land which you have given in Annexure 'E', is it your compilation or is it the compilation of the EOW? Ans.: This detail was provided by, me to the RD office. I have given each and every detail to the Company and the Company has prepared this compilation.
Ques: Did you get Annexure 'E' from the report of the EOW? From where did you get the documents filed as Annexure E? Ans.-I have got the documents as Annexure 'E' from the report of the EOW.
Ques: Do you have any other compilation of documents of the land purchased by you except the document at Annexure E?
Ans: No." (underlined portions emphasized)
16. Learned Senior Standing Counsel for the Official Liquidator vehemently urged that Mr. Sanjeev Malhotra has not been able to account for the misdeeds committed by him so much so that the documents that were undertaken to be submitted with the Official Liquidator or with this Court, as reflected in the aforesaid statement recorded in the Court, have never been submitted and in the said This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 circumstances to shorten the controversy so as to infused funds into the company (in liquidation) and satisfy the debts of the secured creditors, the reliefs claimed by the Official Liquidator be considered by this Court.
17. Learned counsel appearing for Mr. Sanjeev Malhtora vehemently urged that the transfer of title in some of the properties in the land in question in favour of third parties had been effected on the directions of the respondent company (in liquidation) and it was urged that he would be in a position to make payment of Rs. 20 crores to the Official Liquidator provided that the actual and physical possession of the properties, which have been registered in his name, are returned to him by the OL.
18. Unhesitatingly, I find merit in the submissions advanced on behalf of the Official Liquidator that even assuming that Mr. Sanjeev Malhotra had executed sale deeds or agreement to sell, as the case may be, on instructions of the company, what has not been explained is that only 35 bighas of land were purchased for a paltry sum of about Rs. Two crores only and the remaining amount out of Rs. 20,08,40,000/- has not been accounted for. It was pointed out that the bank account of Mr. Sanjeev Malhotra is lying frozen by the Economic Offences Wing but there is hardly any amount left therein, and infact Mr. Sanjeev Malhotra stated that he has been left with Rs. 10,000/- only. The said defence is not palatable. A careful perusal of the statement of Mr. Sanjeev Malhotra recorded in the Court would make it evident that the entire mess has been created by him, not only thereby siphoning the amount of the respondent company (in liquidation) but also in the process jeopardising third party rights. The primary responsibility for the entire sordid state of affairs lies on the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05 shoulders of the Mr. Sanjeev Malhotra, who after buying the properties in his name not only failed to transfer the title in favour of the company (in liquidation) but apparently has created third party rights leaving everyone high and dry.
19. In view of the foregoing discussion, in terms of Section 446(2)
(b) of the Companies Act, 1956 Mr. Sanjeev Malhotra is directed to refund the amount of Rs. 20,08,40,000/- received by him from the company (in liquidation) with interest at 9% per annum w.e.f.
25.04.2012 (the date when Official Liquidator was appointed) till date, to the Official Liquidator within four weeks from today failing which this Court shall initiate appropriate coercive measures to execute this order.
20. It is made clear that aforesaid deposit shall be without prejudice to the legal rights of Mr. Sanjeev Malhotra to lay any claim over the properties in the land bought by him in his own name, for which he may submit his claim before the Official Liquidator.
21. The application stands disposed of accordingly.
CO.PET. 178/2012CRL.O.(CO.) 14/2012
22. In so far as the properties at the State of Uttarakhand are concerned, the matters be listed for hearing on 09.05.2024.
DHARMESH SHARMA, J.
FEBRUARY 8, 2024/ck This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 12/02/2024 at 22:53:05