APPLE A DAY PROPERTIES PVT LTD AND OTHERS Vs. MRS. GLORY VIJAYAN NISHA BHAVAN, PANDARACHIRA ROAD, KADAVANTHARA

JUDGEMENT

(1.) In the above appeal filed under section 483 of the Companies Act, 1956 ( hereinafter referred as 'the Act' for short), the respondents in Co. Appl. No. 177/2014 in C. P. No. 22/2011 is challenging an interim order passed by the learned Single Judge on 3.12.2015. The respondent herein is the applicant before the company court.

(2.) The impugned order reads as follows:

(3.) A brief narration of the history of the case may be beneficial. Various petitions seeking winding up of the 1st appellant company were filed before the company court. During pendency of those petitions and while adjudications with respect to those petitions were going on, the Kerala State Legal Services Authority ( KELSA) intervened and initiated conciliation attempts, pursuant to which a statement was filed by the Managing Director of the 1st appellant company under Section 393 of the Companies Act, copy of which is available in pages 128 to 131 of the paper book in this case. The Associations of the Creditors of different projects promoted by the company, had also filed Schemes of compromise as well as memorandum of understandings. Ultimately, the company court had issued a detailed common order in Company Petition No. 4/2014 and other connected cases, on 10.03.2014. The Scheme of Compromise mooted by one of the creditors, which was adopted by the company and by its other secured and unsecured creditors, was approved by the company court through the said order. The copy of the said order is available in the paper book at pages 234 to 249. It is evident from the said order of the company court that the respondent herein had also come up with a compromise settlement, in lieu of winding up, in M.C.A. No. 22/2013. The company court found that the Compromise Scheme suggested consists of three main parts. Part A deals with 12 projects in respect of which the apartments are almost completed and only some cosmetic works are remaining to be finished, to be followed by registration for conveyance. It was observed that, the allottees of such projects have virtually no case or grievance against the company and therefore those 12 projects were excluded from the purview of the Scheme. Part B of the Scheme takes in 3 projects namely " Big Apple", " Apple Suite" and " Apple One BHK", about which it was observed that only 50% of the work is over and a sum of Rs. 70 crores alone was collected from the customers, but only 33 crores has been put in. As per the scheme of settlement, it was assessed that an amount of Rs. 18 crores is necessary to have the project completed, on a reasonable basis. It was brought to the notice of this court that majority of the allottees have already obtained title deeds and most of them have availed financial assistance from different sources for purchase of the apartments. Various methods for procuring funds for completion of the projects under Part B was envisaged under the Scheme. Part C of the Scheme relates to a project named " Apple Ice" near Manjummel. The company court found that huge liability is outstanding with respect to the said project which need to be settled immediately, otherwise it will lead to serious consequences involving financial commitments. So also, the court found that the project named " Apple New Cochin" was workable and the creditors therein sought for refund. It was realized that various cases are pending with respect to the liabilities towards financial institutions and creditors. This court noticed that, by virtue of the terms of the compromise, majority of the creditors have come forward to purchase plots in the project " Apple New Cochin" and that there is the liability which need to be cleared to the creditors. It is evident from the order passed as mentioned above that, the 1st appellant company had agreed to abide by the compromise mooted by the respondent herein, as revealed from the minutes of the meeting of all parties concerned held, which was presided by Mr. Justice P. R. Raman, a former Judge of this court. In the order approving the Scheme in question, the company court had recorded various submissions made on behalf of the appellant company. For example; it was submitted before this court that the company is having nearly 25 acres of reclaimed land at Thykkattusserry to be allotted to the creditors of " Apple New Cochin" and if any situation arises resulting in deficit to be satisfied, even after the sale of the properties concerned, the office premises at Palarivattom can be proceeded against. It is further recorded in the said order that the learned counsel for the company had undertaken that if such properties are available for sale for any reason, the directors are ready to make available adequate funds from other sources to meet the contingencies. It is repeated in the said order that, on behalf of the Directors a submission was made to the effect that, after proceeding against the properties concerned, if the funds generated appears to be in deficit, the Directors have undertaken to satisfy the deficit amount so as to give effect to the above Scheme. Based on consideration of the Scheme and based on the submissions made, the court ultimately passed the order as follows: