BALESHWAR SHARMA Vs. ANIRVA DEVELOPERS P. LTD.

JUDGEMENT

(1.) THE present petition C.P. No. 74(ND) of 2010 is a glaring example of the grossest abuse of process and fraud practiced on this Board by respondent No. 3 and forum shopping by the petitioner to somehow acquire title for M/s. Anirva Developers P. Ltd. (henceforth the company) over its only asset, being the only purpose for its formation. The company was incorporated on June 14, 2007, with its registered office at 59, A/2, Kalusarai, New Delhi -110 016. The main purpose for the incorporation of the company was to acquire title over land admeasuring approximately 1,33,325 sq. metres in old Goa being Plot No. D -3, forming part of property known as Mallans admeasuring 68,325 sq. metres belonging to Mr. R.C.P. Navelcar and Plot No. D -1 also forming part of property known as Mallans admeasuring 65,000 sq. metres situated in Bainguinim, Tiswadi Taluka under survey No. 26/2 part of the said village under the jurisdiction of village Panchayat of Se (old Goa) (henceforth the property) for a total sale consideration of Rs. 35 crores. The petitioner, who is shown by the respondents, as a property broker/agent and respondent No. 2, Mr. Nageshwar Pandey an advocate both invested Rs. 50,000 each to contribute to the authorised share capital of rupees one lakh of the company divided into 10,000 equity shares of Rs. 10 each and shared equally the equity of the company, i.e., 5,000 shares each. The articles and memorandum of association of the company show the petitioner and respondent No. 2 as the initial subscribers to the authorised and fully paid -up share capital of the company. Prior to the said incorporation a memorandum of understanding had been executed between the petitioner and respondent No. 2 on June 5, 2007, recording that respondent No. 2 had entered into an agreement to purchase the property from Shri Ravinder Navelcar and Mr. Mahesh R.P. Navelcar both residents of Goa and a sum of Rs. 3.95 crores had been paid by the petitioner to respondent No. 2 and that a partnership firm shall be formed, between them and a sale deed of the property shall be got executed in the name of the said partnership firm only. As the petition unfolds the petitioner and respondent No. 2 decided instead to incorporate the company as it would be more congenial for facilitating obtaining of loans from banks, financial institutions or outside parties. According to respondent No. 2 the petitioner did not advance any money to respondent No. 1 company.

(2.) SINCE the document (annexure P3) dated June 5, 2007, recorded a cash payment of Rs. 3.95 crores by the petitioner to respondent No. 2, on March 21, 2013, I directed the petitioner to swear an affidavit to that effect and to file his income -tax return to show that such payment was reflected in his income -tax return for the said year. On May 21, 2013, the petitioner filed an affidavit that the said transaction was not reflected in his income -tax return as he had secured an advance of Rs. 2.40 crores from his friend Mr. Mukesh Kumar and Rs. 1.91 crores from another friend Mr. Pawan Kumar. The date of the said advance was not mentioned in the affidavit. Affidavits of Mr. Mukesh Kumar and Mr. Pawan Kumar were also not filed. I am, therefore, of the considered view that the said transaction of payment of Rs. 3.95 crores by the petitioner to respondent No. 2 is a transaction not recognised under law. Another important fact which emerges from perusal of the pleadings is that respondents Nos. 3 to 8 have categorically denied the payment of Rs. 3.95 crores by the petitioner to Mr. R.C.P. Navelcar. The petitioner has placed strong reliance on the memorandum of understanding dated June 5, 2007, to substantiate payment of Rs. 3.95 crores by him to Mr. Nageshwar Pandey, respondent No. 2 in cash towards his contribution for the purchase of the property. Any such transaction was between the petitioner and respondent No. 2 prior to the incorporation of the company. Secondly, the property consists of two plots admeasuring 68,325 sq. metres and 65,000 sq. metres. However, the sale deed executed by Mr. R.C.P. Navelcar in favour of the company and the sale deed executed by the auction purchaser Smt. Nirupa Udhav Pawar in favour of respondent No. 2 is only in respect of Plot No. D -3 admeasuring 68,325 sq. metres and not in relation to the other plot. Therefore, firstly no payments were made directly by the petitioner to Mr. R.C.P. Navelcar. Secondly, the transaction of payment of Rs. 3.95 crores in cash, by the petitioner to respondent No. 2 is not recognised by law. It is also clear that the said amount of Rs. 3.95 crores was to be apportioned towards the consideration of both the plots and not Plot No. D -3 alone. Therefore, it cannot be ascertained as to how much did the petitioner contribute towards the purchase of Plot No. D -3 before incorporation of the company. Be that as it may it is a transaction only between the petitioner and respondent No. 2 prior to the incorporation of the company and the petitioner is at liberty to avail remedy available to him in an appropriate jurisdiction for recovering such amount from respondent No. 2.

(3.) AS the petition itself reflects the petitioner was at all times aware that the property was the subject matter of litigation in Goa and stood attached and auctioned by the Goa State Co -operative Bank (henceforth the bank) and various litigations were pending including a writ petition in the High Court of Bombay at Goa by Mr. R.C.P. Navelcar. On the strength of a sale deed executed by Mr. Ravinder Navelcar in favour of the company and pertaining only to a part of the property to wit Plot No. D -3 and fraudulently got registered by respondent No. 2 before a Sub -Registrar in Goa not having jurisdiction, and the subsequent transfer of the said property only in the name of respondent No. 2 by an auction purchaser, Mrs. Nirupa Udhav Pawar, was made the basis for seeking a relief in paragraph 8(d) of the company petition directing respondent No. 2 to transfer in favour of respondent No. 1 company all rights created in Plot No. D -3, forming part of the property known as Mallans admeasuring 68,325 sq. metres situate in Bainguinim, Tiswadi Taluka under survey No. 26/2 part of the said village under the jurisdiction of village Panchayat of Se (old Goa) vide sale deed duly registered No. 380 of Volume No. 2187 of Book No. 1, pages 311 to 330 dated February 3, 2010. Despite knowledge the petitioner nowhere revealed in the company petition that Mr. Ravinder Navelcar had mortgaged Plot No. D -3 out of the property with the bank which was subsequently sold in an auction by the said bank to the auction purchaser, Mrs. Nirupa Udhav Pawar who had subsequently also executed a sale deed of the said Plot No. D -3 in favour of respondent No. 2. All such details were carefully suppressed by the petitioner. It was also suppressed by the petitioner that in a Civil Suit No. 22/2010/A (Panaji) subsequently re -registered as Civil Suit No. 39 of 2010(C) (Mapusa) instituted by the company through its director Mr. Satish Julka, respondent No. 3 herein, the civil court had declined to grant any injunction in favour of the company in relation to the said property on the ground that haying mortgaged the said property with the bank, Mr. Ravinder Navelcar could not transfer any legal title by execution of a sale deed in favour of the company which is shown to have been got registered fraudulently by respondent No. 2 (as alleged by the petitioner) with a Sub -Registrar in Goa not having jurisdiction. It was further held that the company could not challenge the legality of the auction proceedings held by the bank in respect of the said property as no injunction could be granted against any authority acting under the law. The refusal of injunction on the ground that the company had no prima facie case was also founded on the fact that the auction in favour of Mrs. Nirupa Udhav Pawar had become final and a sale deed executed by the said auction purchaser, i.e., Nirupa Udhav Pawar in favour of respondent No. 2 Mr. Nageshwar Pandey in his personal capacity, after a consented withdrawal of a Writ Petition No. 498 of 2006 filed by Ravinder P. Navelcar before the High Court, conferred valid title in favour of Mr. Nageshwar Pandey, respondent No. 2. Shri R.C.P. Navelcar had submitted before the civil court that Nageshwar Pandey had paid the consideration for the property to him even before incorporation of the company or in his words "even before the company was born". In other words the civil court held that no prima facie title passed on in favour of the company and in relation to the property mentioned above in view of the fact that having mortgaged the property Ravinder P. Navelcar had no legal right to transfer the said property in favour of the company. Thus the abovementioned fact clearly go to show that being in the knowledge of the above fact and having been unsuccessful in securing even a favourable interim order after pursuing before the High Court of Delhi, Civil Suit No. 470 of 2009 and I.A. No. 3267 of 2009 the petitioner indulged in forum shopping and filed this company petition in July 2010, in an attempt to somehow obtain relief for respondent No. 1 company by suppressing material facts.