Bombay High Court
Official Liquidator Of Shree Ram Urban ... vs Action Barter Private Limited on 9 September, 2021
Author: B. P. Colabawalla
Bench: B.P.Colabawalla
9-OLR-42-2021 & 10-OLR-57-2021 .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
OFFICIAL LIQUIDATOR'S REPORT NO. 42 OF 2021
IN
COMPANY PETITION NO. 1066 OF 2015
AND
OFFICIAL LIQUIDATOR'S REPORT NO. 57 OF 2021
IN
COMPANY PETITION NO. 1066 OF 2015
In the matter of Companies Act I of
Digitally
signed by
GANESH
GANESH
SUBHASH
1956;
SUBHASH LOKHANDE
LOKHANDE Date:
2021.09.14
And
19:00:50
+0530
In the matter of Shree Ram Urban
Infrastructure Limited
Action Barter Private Limited ..Petitioner
----------------------
Mr.Mahendhar Aithe, Company Prosecutor for the Official Liquidator.
Mr.Gautam Ankhad, Namrata Shah, Kyrus Modi, Shamant Safiya i/b.
Rashmikant & Partners for the Decree Holder.
Mr. Girish Godbole a/w. Yamuna Parekh & Sagar Patil for MCGM.
Mr.Rubin Vakil a/w. Mr.Saloni Sulakhe i/b. Dhaval Vussonji &
Associates for Honest Shelters Pvt. Ltd.
Ms.Namrata Shah i/b. Rashmikant & Partners for Kalpataru Properties
Pvt. Ltd.
Mr.Vaibhav Charalwar i/b. Abhineer N. Pange for Resolution
Professional.
Ganesh Lokhande 1/8
9-OLR-42-2021 & 10-OLR-57-2021 .doc
CORAM :- B.P.COLABAWALLA, J.
DATE :- 9th SEPTEMBER, 2021. P. C.:
1. The Official Liquidator has filed the Official Liquidator's Report No. 57 of 2021 seeking further directions in the matter in which an earlier order dated 28th July 2021 passed by this Court in Official Liquidator's Report No. 42 of 2021 is to be given effect to. The issue also pertains to preserving / protecting the Decreed Property (Plot No.5A with three common accesses) out of the larger property of the Company currently custodia legis and in possession of the Official Liquidator.
2. Mr. Vaibhav Charalwar, the learned Counsel appearing for the Resolution Professional, on instructions, reiterates that the Resolution Professional has no funds to take any of the steps sought for in the said OLRs.
3. Mr. Gautam Ankhad, appearing for Kalpataru Properties Pvt. Ltd. ("KPPL") submits that KPPL, being the Decree Holder, in respect of an Award dated 29th August, 2016, under which specific performance is granted in relation to Plot No.5A, has filed Interlocutory Application No.1921 of 2021 before the NCLT, Mumbai for appropriate Ganesh Lokhande 2/8 9-OLR-42-2021 & 10-OLR-57-2021 .doc directions for completion of the conveyance and transfer of the Decreed Property upon simultaneous payment of the balance consideration of Rs. 75.30 crores which could be utilized by the Resolution Professional towards paying the outstanding dues of the Official Liquidator and the balance could be utilized in the Corporate Insolvency Resolution Process. Mr. Ankhad also informs this Court that KPPL was served with the Resolution Professional's affidavit in reply dated 30th August 2021 to the said Interlocutory Application stating that the Resolution Professional has no objection to the completion of the conveyance of the Decreed Property and to the payment of the balance consideration.
4. As regards the structural audit of the boundary wall of the larger property of Shree Ram Urban Infrastructure Ltd (Company in Liquidation) is concerned, Mr. Ankhad submits that as the larger property is subdivided, some portions of the boundary of the larger property concern separate plots (such as MHADA, MΔP, PG and Ansal Co-operative Housing Society Ltd) who may have their own reconstructed walls. The remaining portion of the boundary wall surrounds Plot 5B + 6, Plot No. 9 and other plots. One Honest Shelters Pvt. Ltd. ("Honest Shelters") who were represented by Advocates before this Court on 25th August 2021 and 1st September 2021 purport to be the purchaser of Plot 5B + 6. Mr. Ankhad has tendered a copy of the Ganesh Lokhande 3/8 9-OLR-42-2021 & 10-OLR-57-2021 .doc layout plan showing relevant points along the larger boundary. The same is taken on record and marked "X" for identification. So far, none have raised any issue regarding the wall abutting their plots. For this application, KPPL is concerned only with the blue demarcated portion from Point A to B of Plot No.5A on the plan submitted to this Court and not with the remaining wall of the larger property. However without prejudice to its rights and contentions, KPPL has agreed that it shall also bear the proportionate costs for the structural audit report for the common access from Point J to Point L. In view thereof, it is submitted that if the Official Liquidator conducts the structural audit of the boundary wall of the larger property, KPPL shall proportionately bear the expenses of the structural audit report from Point A to Point B of Plot 5A and Point J to L on the common access as shown on the layout plan marked "X" for identification.
5. Mr. Godbole, the learned counsel for MCGM submits that inspection and the structural audit of the wall of the larger property is required to be done since the wall of the larger property is old and may have developed weaknesses which are currently not known. It is therefore recommended by the structural engineer to carry out the structural audit for the entire wall of the larger property from Point B to Point J of the layout plan which is marked "X" for identification. Ganesh Lokhande 4/8
9-OLR-42-2021 & 10-OLR-57-2021 .doc
6. In so far as the structures abutting the boundary wall to be demolished from Point B is concerned, Mr. Godbole states that the occupants of these structures shall arrange to move away from the boundary wall whilst the demolition is being carried out and shall not obstruct the demolition and rebuilding of the boundary wall.
7. Mr. Vakil appearing for Honest Shelters submits that his client is the owner of Plot 5B + 6 and without prejudice to its rights and contentions, shall bear the proportionate costs of the structural audit report of the boundary wall from Point A to Point L.
8. Having heard all the parties, the Official Liquidator is directed to forthwith take steps to comply with the recommendations recorded in the Minutes of Site Inspection dated 26th July 2021 made by the engineer of the MCGM i.e. - the boundary wall from Point B up to the collapsed portion to be removed and the remaining part of the boundary wall of the entire premises (from Point B to Point J) to be audited by a structural engineer registered with MCGM and a structural stability certificate be obtained. The Official Liquidator shall fix an appointment for inspection and carrying out the structural audit of the wall enclosing the larger property within two weeks from today and file Ganesh Lokhande 5/8 9-OLR-42-2021 & 10-OLR-57-2021 .doc a compliance report in this Court within a period of two weeks from the receipt of the said structural report.
9. The Official Liquidator shall indicate the estimated expenditure of the structural audit report to KPPL and Honest Shelters within 2 days of the receipt of the estimated costs from the engineer. On receipt of such statement, KPPL will put the Official Liquidator in funds for the proportionate costs for the structural audit report only from Point A to the collapsed portion of boundary wall and Point L to Point J (being the common access) as shown in the plan marked "X" for identification. Similarly, Honest Shelters will put the Official Liquidator in funds for the proportionate costs for the structural audit report from Point A to Point L as shown in the layout plan marked "X" for identification.
10. It is clarified that the payments made by Honest Shelters for bearing the expenses of the Structural Audit of the wall enclosing the plots such as MHADA, MΔP, PG, MCGM is without prejudice to their rights & contentions and will not be construed to be the liability of Honest Shelters.
11. The Official Liquidator is also directed to take steps to Ganesh Lokhande 6/8 9-OLR-42-2021 & 10-OLR-57-2021 .doc demolish and rebuild the 27 metre portion of the wall between Point A and B of Plot 5A (identified in the plan marked "X" for identification), for which KPPL has undertaken to bear the initial expenses, subject to further orders of this Court or the NCLT. The Official Liquidator in his Minutes dated 26th July 2021 has annexed photographs which show that there are structures are abutting the boundary wall between Point A and Point B. Whilst all efforts will be taken to ensure minimum damage it may be possible that whilst demolishing / rebuilding the wall, some portion of the occupants' structure may be damaged. It is therefore clarified that KPPL will not be responsible for evacuation / providing temporary accommodation / re-housing of the occupants and also if any damage is caused to the structures adjoining the collapsed wall.
12. M/s Satyanarayan Trading Company, the contractor appointed by the Official Liquidator (as set out in OLR 57 of 2021) shall ensure that whilst demolishing the 27 metre stretch of the wall from Point B, the debris shall fall into Plot 5A. The Official Liquidator shall specifically instruct the contractor of the same. At the request of the Official Liquidator, and on the identified date / time, MCGM shall depute its concerned officer to supervise the said demolition and reconstruction.
Ganesh Lokhande 7/8
9-OLR-42-2021 & 10-OLR-57-2021 .doc
13. It is clarified that this Order is passed without prejudice to the rights and contentions of all the parties and this order does not adjudicate any disputes in relation to title or possession.
14. For the sake of convenience, the layout Plan marked as "X" for identification is appended to this order and signed by me and shall form a part of this order.
15. The OLR 57 of 2021 and OLR 42 of 2021 stands disposed of. Liberty to apply. Place the above matters for compliance on 13th October, 2021.
16. All parties to act on an authenticated copy of this order digitally signed by the Personal Assistant /Private Secretary/Associate of this Court.
(B. P. COLABAWALLA, J.) Ganesh Lokhande 8/8