MAYTAS PROPERTIES LIMITED Vs. KRISHNA KILARU

JUDGEMENT

(1.) THE applicants herein have not preferred an appeal, under Section 483 of the Companies Act (hereinafter called the "Act", against the order of this Court in C.P. No. 70 of 2010 and batch dated 21.08.2012. They neither seek review of the said order nor is it their case that it suffers from an error apparent on the face of the record. It is not even their case that the said order is in violation of principles of natural justice or that it is vitiated by fraud. They do not also contend that the said order has resulted in substantial injustice. Yet they seek "recall" of the order of this Court dated 21.08.2012 citing subsequent events as a justification for filing the applications. Company Application Nos. 680 of 2013 and batch, in C.P. No. 70 of 2010 and batch, are filed to recall and set aside the order in C.P. No. 70 of 2010 and batch dated 21.08.2012, and to dismiss the Company Petitions. The Applicant, in C.A. No. 680 of 2013 and batch, is the respondent in C.P. No. 70 of 2010 and batch; and the respondents, in C.A. No. 680 of 2013 and batch, are the petitioners in C.P. No. 70 of 2010 and batch. Parties shall, hereinafter, be referred to as they are arrayed in C.P. No. 70 of 2010 and batch.

(2.) THE petitioners filed C.P. No. 70 of 2010 and batch seeking winding up of the respondent -company under the provisions of the Act and for appointment of the Official Liquidator, attached to the High Court of A.P, as the liquidator of the company with all powers under Section 50 of the Act. The petitioners are individuals who were allotted flats in the "Hill County" apartment complex located at Bachupally village, Quthbullapur Mandal, Ranga Reddy District. Agreements of sale were entered into between the petitioners and the respondent, during the years 2006 to 2008. All the petitioners have, admittedly, paid a substantial part of the sale consideration running into several lakhs each. On the ground that the respondent -company did not complete construction of the apartments, within the agreed period, the petitioners terminated the agreements of sale. Construction of the "Hill County" apartment complex came to a halt in December, 2008. The erstwhile directors of the respondent -company are the sons of Sri B. Ramalinga Raju, Chairman of Satyam Computer Services Limited, who, in the first week of January, 2009, confessed that he had committed a huge corporate fraud of around Rs. 7,000 crores.

(3.) THIS Court ordered notice before admission, in C.P. No. 70 of 2010 and batch, on the respondent company on 12.04.2010. Counsel entered appearance and filed a counter -affidavit on behalf of the respondent -company. Several affidavits and counter -affidavits were filed thereafter. The implead applications, filed by M/s. IL and FS Group Engineering Company Limited, the Hill County Owners welfare association, and MAYTAS Hill County buyers association, were allowed. The Company Petitions were elaborately Heard for their "admission". In its order, in C.P. No. 70 of 2010 and batch dated 21.08.2012, this Court rejected the preliminary objections of the respondent -company to the maintainability of the winding up petitions, i.e., (1) the agreements of sale, and the clauses therein, could not be examined as the said documents were not adequately stamped or registered, and (2) since arbitration proceedings had already been instituted, the remedy of the petitioners was to submit their claims before the arbitrator, and not to file winding up petitions. Thereafter the contentions urged, both on behalf of the petitioners and the respondents, were examined on their merits. This Court held that none of the contentions, urged on behalf of the respondent -company, constituted a bona fide dispute necessitating dismissal of the company petition at the stage of admission; neither was the defence of the respondent in good faith and of substance nor was it likely to succeed in point of law; the respondent had also not adduced prima facie proof of the facts on which their defence depended; the amount due was a "debt"; the petitioners were creditors, and the respondent their debtor; the defence of the respondent was not valid and was a mere moonshine; and the presumption, under Section 434(1)(a) the Act, was satisfied necessitating exercise of discretion by the Court to admit the Company Petitions.