TaxTMI 
TaxTMI 
TaxTMI 
2025 (10) TMI 923
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....d 21/2024 challenging the common Order passed by the learned Company Judge on 16.04.2024 in Company Petition 152/2016 captioned Rajni Anand v. Cosmic Structures Ltd., shall stand disposed of. 2. In the facts of the present case, the question which requires adjudication by this Court is whether, by virtue of an Agreement to Sell [hereinafter referred to as 'ATS'], any right in the property is created in favour of the Company in Liquidation. FACTUAL MATRIX: 3. In order to comprehend the issues involved in the present case, the relevant facts in brief are required to be noticed. 4. M/s Surya Jyoti Software Pvt. Ltd. [hereinafter referred to as 'SJS'] was allotted Plot No. 1, Sector-154, Noida-201301 [hereinafter referred to as 'Lease Plot'], on a 90 year leasehold basis vide allotment letter dated 03.07.2008. M/s Cosmic Structures Limited [hereinafter referred to as 'CSL'] is another Company, which is in liquidation. 5. SJS entered into an ATS with CSL on 16.04.2013, whereby it was agreed that CSL would take over the entire shareholding of SJS for consideration of Rs. 44,80,97,177/- (including a one-time lease rent of Rs. 2,80,46,777/-). Further, as per Clause 5 of the ....
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....of this Agreement, it is agreed among the parties that the Second Party shall be entitled, competent and authorized to take bookings in the project, receive consideration in its own name and at its own risk w.e.f. 07th April'2013. The Second Party shall keep the First Party completely indemnified in respect of the same. However, the Second party shall have no right to execute a sub lease or transfer unless and until all consideration mentioned in the agreement has been received by First Party." 6. It is pertinent to note that CSL failed to adhere to the payment schedule, which would be evident from the following table, extracted from Paragraph no.32 of the Impugned Order/Judgment: "32. ...it would be apposite to highlight that the payments commenced from 09.09.2013 and lasted till 10.12.2015, as per the tabular details provided in the Affidavit of the applicant, reproduced as under: Date Amount (in Rs.) 09-09-2013 50,00,000 09-09-2013 25,00,000 23-09-2013 50,00,000 07-10-2013 1,00,00,000 14-10-2013 50,00,000 18-10-2013 1,00,00,000 18-10-2013 50,00,000 21-10-2013 50,00,000 23-10-2013 50,00,000 12-11-2013 5....
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....re the Company Judge to revive CSL. 12. In the end, while referring to certain communications sent by Mr. Sandeep Pahwa, who was a Director in CLS, however, was communicating on behalf of SJS as Project Director, it was contended that, in fact, SJS and CSL are acting in collusion. 13. Learned Senior Standing Counsel for the Official Liquidator has supported the Appellant, while submitting that SJS issued a notice dated 25.02.2016 terminating the ATS after an Interim Order was passed in the Company Petition on 23.02.2016. Moreover, while granting the relief of release of the property, the relief of refund of the earnest money has not been granted by the Court. Further, she, while referring to Section 446(2) of the Companies Act, 1956 [Section 446(2).], submits that the Tribunal has jurisdiction to entertain and decide all the claims with respect to the Company in Liquidation. In the end, it was contended that, as per Section 73 of the Contract Act, 1872 [Section 173.], SJS does not have the right to forfeit the amount to the extent of 20% of the total sale consideration unless actual damages suffered are proved. 14. Ms. Vrinda Bhandari, learned counsel for Mr. Nishant Muttr....
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....e. As per Clause 12 of the ATS, SJS was entitled to forfeit 20% of the total sale consideration while terminating the ATS. It was also provided that timely payment of consideration is the essence of the ATS, and a maximum delay of two months shall be respected. Subsequently, it was provided that if there is a delay of more than two months, CSL shall be liable to pay the liquidated damages of Rs. 10 lakhs per month, while giving the right to the First Party to terminate the ATS and forfeit 20% of the total sale consideration. Hence, once there is a default committed by CSL, SJS can terminate the ATS, while forfeiting 20% of the total sale consideration. 19. At the cost of repetition, the Company in Liquidation, i.e., CSL, is not the owner of the property. On careful reading of Clause 16 of the ATS, it becomes evident that although CSL was permitted to take bookings in the Cosmic Masterpiece Project [hereinafter referred to as 'the Project'], however, it was specified that CSL shall have no right to execute a sub-lease or transfer unless and until the entire sale consideration mentioned in the ATS has been paid by CSL to SJS. In these circumstances, the contention of the learned c....
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....eriod after completion of 60 days of default period or without prejudice to the First Party's right to terminate as aforesaid, it shall be open to the First Party to waive off the termination of this Agreement on the Second Party making payment of the defaulted amount along with interest at the rate of 18% per annum for the delayed period. It is however clarified that this waiver of the termination of the Agreement is purely discretionary in nature and this discretion will lie with the First Party alone." 24. On a careful reading of Clause 18 of the ATS, it is evident that SJS has not waived its right to terminate the ATS, particularly when SJS vide notice dated 25.02.2016 terminated the ATS. 25. The second submission of the learned Senior Standing Counsel for the Official Liquidator also lacks merit because the learned Company Judge had examined the matter, and it is evident that SJS is entitled to forfeit 20% of the total sale consideration. Certain payments were made to the NOIDA Authority, however, for the remaining amount; CSL has never filed a suit which could be tried by the Company Judge in view of Section 446 (2). 26. Further, in an Appeal, this Court is not expec....