U. G. Hotels & Resorts Ltd. v. Business Associates (Delhi) Pvt. Ltd.
2016-03-31
MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN
body2016
DigiLaw.ai
JUDGMENT : Tarlok Singh Chauhan, J Company Application No. 14 of 2016. By medium of this application, the applicant/appellant has sought condonation of 35 days delay that has crept-in in filing of the instant appeal. 2. We have gone through the contents of the application, more particularly paras 2 to 6 thereof, duly supported by the affidavit of the Administrator of the applicant/appellant, which reveal that the applicant/appellant has shown sufficient cause which prevented it from filing the appeal within the prescribed period of limitation. Accordingly, the application is allowed and the delay of 35 days in filing of the appeal is condoned. Application stands disposed of. Company Appeal No. 1 of 2016. Be registered. 3. This appeal under Section 483 of the Companies Act, 1956 (for short =Act') is directed against the orders passed by learned Company Judge on 22.12.2015 and 7.1.2016 in Company Applications No. 44 and 49 of 2015 and Company Application No. 4 of 2016 in Company Petition No. 9 of 2012. 4. Since the Company Petition itself is listed for final hearing before the learned Company Judge on 31.3.2016, therefore, we at this stage are only required to find out as to whether the appellant has made out a prima-facie case for staying further proceedings before the learned Company Judge. 5. The challenge in this appeal by the Administrator of the appellant is inter alia to the non-vacation of the order of status quo in respect of the property of the appellant Company which was passed on 11.10.2012 in Company Application No. 28 of 2012. The appellant is aggrieved since it alongwith its promoters/ directors including Sh. H.S. Ghai, owes to the respondent No.2 Company over 17 crores. 6. The Company Petition was filed by respondent No.1 M/s Business Associate Pvt. Ltd. for alleged non-payment of Rs.6.90 lacs and is claimed to be a collusive petition filed at the behest of Sh. H.S. Ghai through the instrumentality of the Company belonging to him and his family members. 7. Indisputably, all the stakeholders and creditors of the appellant-company in pursuance to the settlement agreed to the sale of the resort and assets of the company before the Company Law Board (for short =CLB').
H.S. Ghai through the instrumentality of the Company belonging to him and his family members. 7. Indisputably, all the stakeholders and creditors of the appellant-company in pursuance to the settlement agreed to the sale of the resort and assets of the company before the Company Law Board (for short =CLB'). However, earlier to this, the learned Company Judge passed an order of status quo on 11.10.2012 which according to the appellant is impeding the process of implementation of the mandate of the CLB given with the consent of the parties. 8. It is averred that the Administrator on receiving offers and after getting the valuation done approached the CLB for permission for sale and/or inviting public bids. However, the CLB before processing the permissions/permitting bids desired the Administrator to move the Company Judge for vacation of the aforesaid order. The Administrator accordingly filed Company Application No. 49 of 2015 seeking vacation of the aforesaid order which was declined on 22.12.2015 vide impugned order which reads thus: ?Co.Application No. 49 of 2015 in Co. Pet. 9 of 2012 No ground has been made out for alteration of order dated 11.10.2012. However, in the interest of justice, the company petition itself is ordered to be listed for final hearing on 31.3.2016. The application stands disposed of.? On the same date, an application moved by 46 former employees of the appellant for impleading them as parties in the winding petition also came to be allowed in the following terms: ?Co. Application No. 44 of 2014 in Co. Pet. No.9 of 2012. The applicants are permitted to be impleaded as creditors/ petitioners. The Registry is directed to carry out necessary correction in the memo of parties. The application stands disposed of.? 9. The appellant thereafter again moved an application for variation, clarification and further directions in respect of the order dated 22.12.2015 (supra) reiterating the grounds taken in the earlier application i.e. C.A. No. 49 of 2015 and the same is stated to be pending adjudication before the learned Company Judge. 10. The grievance of the appellant at this stage is two fold.
10. The grievance of the appellant at this stage is two fold. Firstly, the order of the status quo is impeding the process of implementation of the mandate of the CLB and secondly, the impleadment of 46 former employees of the appellant is not only against the statutory requirement of the Act, but would ultimately interfere with the decision making of the winding up petition itself. We have heard the learned counsel for the parties and have gone through the material placed on records of the case. 11. It is not in dispute that it was pursuant to the consent of all parties that Administrator of the appellant came to be appointed on 31.1.2014 and this fact is duly recorded in the order passed by the CLB on 2.12.2013. It is further not in dispute that the Administrator in terms of the aforesaid order apart from carrying out the other functions was required to take steps to clear the clouds, if any, over the title to the assets of the Company in the revenue records so as to make it marketable by ensuring that all or any permissions required under the law to sell the property are obtained. Once, this is the admitted position, then the application filed by the Administrator did deserve some consideration especially when as many as eleven grounds had been set out therein and even otherwise the order of status quo dated 11.10.2012 had been passed earlier to the appointment of the Administrator. 12. In addition, we also find that 46 former employees have been ordered to be impleaded as parties, that too, without notice to the appellant. That apart, there is nothing on the record to suggest that these employees prior to seeking their impleadment had even served a notice under Sections 433 and 434 of the Act, and therefore, in such circumstances their impleadment prima-facie appears to be contrary to law. 13. Having said so, we are of the considered view that the appellant has carved out a prima-facie case calling for interference by this Court. Accordingly, further proceedings in Company Petition No. 9 of 2012 pending before the learned Company Judge, fixed for 31.3.2016 are ordered to be stayed. Call for the records. List on 09.05.2016.