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2020 Supreme(Del) 1252
IN THE HIGH COURT OF DELHI AT NEW DELHI
Jayant Nath, J.
Col P K Uberoi (Retd ) & Anr. - Appellant
Versus
Vigneshwara Developwell Pvt Ltd & Ors. - Respondent
Company Application No. 509 of 2018; Company Petition No. 885 of 2015
Decided On : 27-01-2020
Shailendra Singh, Advocate, Shashwat Jain, Advocate, Sandeep Phogat, Advocate, Arunav Patnaik, Advocate, Shikhar Saha, Advocate, Anju Jain, Advocate, Najimuddin Ahmed, Advocate, R.K. Gupta, Advocate, Abhishek Saket, Advocate, Shahana Farah, Advocate, Rahul Dubey, Advocate, Chitral Gambhir, Advocate, Siddhant Tripathi, Advocate, Abhinav Mishra, Advocate, Nivedita Chauhan, Advocate, Karan Nagpal, Advocate, Arunav Patnak, Advocate, Arjun Nanda, Advocate, Amitabh Sinha, Advocate, Aarzoo Aneja, Advocate, Jay Salva, Advocate, Bharat Gupta, Advocate, Shreya Rao, Advocate, Vishesh Chauhan, Advocate, Sameer Jain, Advocate, Angad Sandhu, Advocate, Anish Dayal, Advocate, Siddharth Vaid, Advocate, Rupam Sharma, Advocate, Kunal Sharma, Advocate, Anil Grover, Advocate, Noopur Singhal, Advocate, Nipun Kapur, Advocate, Ruchir Bhatia, Advocate, Manik Dogra, Advocate, Dushyant Manocha, Advocate, Ananaya Ghosh, Advocate
The main legal point established in the judgment is the court's authority to approve a scheme of compromise and arrangement under sections 391-393 of the Companies Act, 1956, and the court's power to appoint a supervisor to oversee the scheme's implementation.
Headnote:
Companies Act - Scheme of Compromise and Arrangement - Section 391-393 - Summary of Acts and Sections: The court discussed the Companies Act, 1956, specifically sections 391-393, which govern the approval of the proposed Scheme of Compromise and Arrangement of the two companies with their respective members and creditors. The court analyzed the revival scheme, objections from allottees/unit buyers, and the financial capacity of the promoters to mobilize funds for the scheme.
Fact of the Case:
The promoters of two companies filed an application under sections 391-393 of the Companies Act, 1956, seeking approval of a proposed Scheme of Compromise and Arrangement. The companies were facing winding up petitions and the promoters were in judicial custody. The scheme aimed to settle claims of unsecured creditors and revive the companies' projects.
Finding of the Court:
The court found that the scheme had the support of a majority of creditors and allottees, and rejected objections related to lack of financial capacity and lack of support from 3/4th of value of creditors. The court appointed a supervisor to oversee the implementation of the scheme and directed the promoters to open an escrow account for scheme revenues.
Issues: The main issues revolved around the financial capacity of the promoters to mobilize funds for the scheme, objections from allottees/unit buyers, and compliance with statutory provisions.
Ratio Decidendi: The court held that the scheme was just, fair, and reasonable, and approved it subject to supervision by a court-appointed supervisor. The court also directed the promoters to open an escrow account for scheme revenues and appointed a retired judge to oversee the scheme's implementation.
Final Decision: The court approved the scheme, subject to supervision by a court-appointed supervisor, and directed the promoters to open an escrow account for scheme revenues. The functioning of the scheme would be reviewed after three months, and the statutory authorities were directed to take a lenient view while dealing with the company in light of the revival attempts.
JUDGMENT
Jayant Nath, J. - This application is filed under section 391-393 of the Companies Act, 1956 by the promoters of Vigneshwara Developwell Private Limited and Vigneshwara Developers Private Limited praying for approval of the proposed Scheme of Compromise and Arrangement of the two companies with their respective members and creditors. Against the two companies in question, namely, Vigneshwara Developers Private Limited and Vigneshwara Developwell Private Limited winding up petitions were admitted and order appointing the OL as Provisional Liquidator were passed by this court on 22.7.2016 in CP No.534/2015 titled Naresh Chand Gupta and Anr. vs. Vigneshwara Developers Private Limited and in (the present petition) CP No.885/2015 titled Col.P.K.Uberoi (Retd.) and Anr. vs. Vigneshwara Developwell Private Limited.
2. It is pleaded that during pendency of the aforesaid proceedings by permission of this court, the Ex.Management of the aforesaid companies engaged in mediation proceedings with the creditors. Large number of settlements have been concluded before the Delhi High Court Mediation and Conciliation Centre by the authorised representatives with the creditors. Based on the said settlement terms, it is pleaded that the present revival scheme has been filed which has been attached as Annexure D to the application. It is admitted that the promoters of the two companies i.e. Mr.Sunil Dhaya & Mr.Sanjay Dhayia are in judicial custody in connection with various proceedings said to have been initiated by unsecured creditors of the various companies.
3. It is pleaded that the two companies do not have any secured creditors. A copy of the certificate of the Chartered Accountant has been placed on record. Last audited balancesheets of the two companies for the year 31.3.2013 have also been enclosed. The class of unsecured creditors to whom the revival scheme is applicable have also been enclosed as Annexure J.
4. I may only note that after judgment was reserved and delivery of the present judgment was pending, NCLT passed an order on 10.10.2019 appointing an Interim Resolution Professional and declared a moratorium under section 14 of the IBC. The propounders of the Scheme filed a Writ Petition before this court titled Sunil Kumar Dahiya vs. Union of India being W.P.(C)11706/2019. This Court disposed of the petition on 8.11.2019 noting that this court is seized of the revival of the company stayed the operation of the order dated 10.10.2019 of NCLT until pronouncement of the judgment of this court or until the matter is decided by NCLAT. NCLAT was requested to consider the matter including the orders passed by the Company Court.
5. The NCLAT on 19.12.2019 adjourned the matter to 9.1.2020. The matter is said to be pending.
6. The present application came up for hearing on 23.4.2018 when notice was issued on the same to the non-applicants. On 12.10.2018, this court had noted the submission of learned counsel for the applicant that there are two projects of the respondent company, namely, Darson and Kisson I Valley Business Park at Plot No.CP02, Sector 8, Manesar, Gurugram which was allotted for development of a technology park. Similarly, another project by the name of Aquarious Business Park has also been developed at Village Begumpur Khatola, Sector-74, Gurugram. The plea of the learned counsel for the applicant was also noted that the applicant has entered into settlements before the Delhi High Court Mediation and Conciliation Centre with the Investors Sangharsh Samiti (Regd.) who has 523 Members on 4.12.2017. A settlement was also entered into with Vigneshwara Barter Investors Association (VBIA) which had 250 members and Vigneshwara Victims Welfare Association who had 300 members. Some individual agreements had also been entered into. It was pleaded that out of about 1437 unit buyers, 1180 have agreed to the settlement and have signed the settlement agreements before the Delhi High Court Mediation and Conciliation Centre. This co
