TaxTMI 
TaxTMI 
2020 (5) TMI 102
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....ease deeds have also been registered for some of the allottees. As far as block A is concerned, it is stated that the Scheme envisages shifting of the allottees to blocks B, C and D by allotting them areas which are unsold subject to the allottees making payments. Another project of the company is Spire Woods Project which is a residential scheme located in sector 103, Gurugram, Haryana. This project has 12 towers containing 620 dwelling units. 3. A perusal of the Scheme filed by the petitioner shows that it seeks three-fold objects, namely, revival of the company, construction of the Spire Edge Project and Construction of the Spire Woods Project. Regarding the Spire Edge Project, the propounders expressed their willingness to complete the construction of towers 'E' and 'F' and furnished offices. Certain terms are introduced, namely, that the allottees shall not claim any penalty, damage, compensation, etc. from the Company. It is claimed that an amount of Rs. 25 crores is required for completion of construction of Block 'E' and 'F' and the furnished offices of Spire Edge Project. The same will be organized out of funds which will be infused by the propounders and out of sales a....
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....Court Convened Meeting for Revival of A.N. Buildwell Pvt. Ltd. Synopsis of Spire EDGE Project Block A (Spire Edge Project)-06.01.2019 Particulars In number Percentage(based on the numbers of allottees) Total No. of Allottees 34 100 Total No. of Allotees/Proxy Appeared 24 71 Total Votes 24 100 Valid Votes 24 100 Invalid Votes 0 0 Total Valid Votes Cast in favour of the Scheme Without Modification 20 83 With Modification 4 77 Total FOR (with or without Modifications) 24 100 Total Valid Votes Cast Against the Proposed Scheme 0 0 Block B, C & D (Spire Edge Project)-14.01.2019 Particulars In number Percentage(based on the number of allottees) Total No. of Allottees 1041 100 Total No. of Allotees/Proxy Appeared 395 38 Invalid Votes 11 Valid Votes 384 100 Total Valid Votes Cast in favour of the Scheme Without Modification 22 6 With Modification 293 76 Total FOR (with or without Modifications) 315 82 Total Valid Votes Cast Against the Scheme Without Modification 19 5 With Modification 50 13 Total Against (with or without modifications) 69 18 Synopsis of Spire EDGE Project F....
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.... result is that with the necessary modifications each of the category of creditors have passed the Scheme with modifications with a majority of more than 75%. In nutshell, learned counsel states the result as follows:- (a) Block A (Spire Edge Project) 100% approval (b) Blocks B,C and D, (Spire Edge Project) with modification 82% (c) Furnished Office (Spire Edge Project) with modifications 97% (d) Block E (Spire Edge Project) with modifications 99% (e) Spire Woods Project with modifications 98% 7. In terms of section 391 of the Companies Act, 1956, much above 75% of the creditors have given their consent to the annexed scheme. 8. This petition came up for hearing before the Court on 8.3.2019. This Court directed notice to be issued to the (i) Official Liquidator/Provisional Liquidator (ii) Income Tax Department (iii) Excise and Taxation Department, Government of Haryana. (iv) Service Tax Department/Good & Service Tax Department (v) Directorate of Town and Country Planning, Chandigarh (vi) HSIDC Limited Haryana (vii) Real Estate Regulatory Authority, Gurugram, Haryana (viii) State Environmental Impact Assessment Authority, Haryana and (ix)Regional Director, Northern Regio....
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....revival scheme is against public policy, unconscionable and prejudicial to the interest of the allottees of the Spire Woods Project. The prejudicial terms include settlement of FIRs, criminal complaints, lack of particulars regarding the identity of the new investor in the respondent and the manner in which and the terms on which it proposes to complete the Spire Woods Project. It is pleaded that once the revival scheme is sanctioned, SW New Developer Company (a potential investor) could completely disappear leaving all allottees high and dry. It is further pleaded that exoneration of the respondent company, its past directors and officers and original shareholders from pending litigations including criminal cases contemplated under various clauses of the revival scheme is against public policy and illegal. Reliance is placed on the judgment of the Supreme Court in the case of J.I.K. Industries Ltd. & Ors. vs. Amarlala V. Jumani & Anr., (2012) 3 SCC 255 and the judgment of this court in the case of Krishna Texport Industries Ltd. vs. DCM Ltd.,(2008) 104 DRJ 101 (DB). It is further pleaded that despite the revival scheme having been passed by the majority, the revival scheme ough....
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....f the Supreme Court in the case Meghal Homes (P) Ltd. Vs. Shree Niwas Girni K.K. Samiti and Ors., (2007) 7 SCC 753. Essentially the objections are a claim for better terms than what the scheme proposes. It is pleaded that Technology Upgradation Charges/WTC should be refunded back to the allottees or should be adjusted against the outstanding payment that some allottees may have to make. It is prayed that payment of 14 months unpaid assured returns/commitment charges @ Rs. 55/- per sq. ft. as stipulated in the builder buyers agreement be made. It is pleaded that the incomplete building of blocks was forced upon the allottees on 30.10.2011 and hence, assured returns to all allottees were stopped on the pretext that possession has been offered. The difference of time period between the date when the possession was forced and the date when the actual occupancy certificate was obtained is 14 months. Hence, investors feel that it would be justified for them to demand pending assured returns for the said 14 months. It is further pleaded that the petitioners be directed to make immediate payment of Rs. 20 crores to SELFC for the purpose of repair, renovation and completion of buildings o....
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....lour from the same intent and in a similar situation. The proceedings arose on account of the failure of the company to meet its financial commitments. Thus if winding proceedings are pending, the civil proceedings can be put in abeyance for the time being to give some time to the company to come up with a scheme or otherwise to clear its liability. In fact, in view of the D.K. Kapur's case (supra), the matter is not even res integra insofar as this Court is concerned that in such a situation criminal proceedings cannot be kept in abeyance. xxx 26. We are in agreement with the view that the words used in all the aforesaid provisions of "proceedings" or "other proceedings" must be construed ejusdem generis with the expression 'suit' used aforesaid and clearly imply civil proceedings. It is only such construction which is in conformity with the intent of the legislature introducing these provisions in the said Act xxx 33. It can hardly be said that the object of Section 391 (6) of the said Act is to prevent action against the officers of the company who may be involved in cheating, criminal breach of trust, mis-appropriation, forgery and for that matter dishonour of cheque. ....
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....ceedings. To that extent the aforesaid clauses of the scheme would accordingly not be approved. However, once the scheme is implemented and the concerned creditor receives his share as per the scheme, appropriate consequences would follow as per law in the pending criminal matters. 19. Regarding the concern of the objectors that the scheme is nothing but an attempt to siphon off funds and assets of the company in question, the said apprehension can be taken care of by appointing a court supervisor who would supervise the completion of the scheme. This is so as the OL has already been appointed as the Provisional Liquidator. It is true that the funds of the company cannot be dissipated in the guise of a revival scheme. To ensure that is not done, it would be necessary to have a close watch on the functioning of the revival scheme and the manner in which the assets of the company are dealt with. To ensure the same, it would be appropriate for this court to appoint a court commissioner to supervise the functioning of the scheme. This would allay the fears of the objectors, namely, that the propounders of the scheme would end up siphoning off valuable funds and assets of the company. ....
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....t the Company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bona fide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent. 8. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial to the class represented by them for whom the scheme is meant. 9. Once the aforesaid broad parameters about the requirements of a scheme for getting sanction of the Court are found to have been met, the Court will have no further jurisdiction to sit in appeal over the commercial wisdom of the majority of the class of persons who with their open eyes have given their approval to the scheme even if in the view of the Court there would be a better scheme for the company and its members or creditors for whom the scheme is framed. The Court cannot refuse to sanction such a scheme on that ground as it would otherwise amount to the Court exercising appellate jurisdiction over the scheme rather ....
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.... such aspects, the Gujarat High Court (speaking through D.A. Desai, J. as His Lordship then was) and considering the matter in all its length and breadth in re. Maneckchowk and Ahmedabad Manufacturing Co. Ltd. reported (1970) 40 Comp. Cas. 819 made the following observations which would equally apply to the present fact situation: "Even at the cost of repetition, it must be mentioned that the scheme is opposed by a very few creditors and an infinitesimally small number of shareholders. The fact that the scheme has been approved by a requisite majority of shareholders is undoubtedly a strong argument in its favour, unless it is shown that their approval was not obtained fairly and the terms of the scheme are not such as a reasonable man may accept. The approval of a scheme by statutory majority of creditors and members is not decisive of the matter. But it is equally true that due weight should be attached to the choice indicated by the creditors and members who are vitally interested in the company and the scheme affecting the company. Further, on the analysis of the votes cast at the meeting, the salient feature that comes out to the surface is that the scheme was opposed especi....