IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 Co.Appeal.No. 24 of 2009 -------------------------- AGAINST THE ORDER IN CP.37/1998 Dated 13/10/2009 .................... APPELLANT./IST PETITIONER ------------------------------ JYOMAN BUILDERS PVT.LTD, NAMBIAR BUILDINGS, SASTHA TEMPLE LANE, SRM ROAD, COCHIN-18. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS/PETITIONERS 1 TO 6 & RESPONDENTS 2 TO 68.: ---------------------------------------------------------------------- 1. B.SARATCHANDRA DAS, NADUVATH, T.V.PURAM, VAIKOM. 2. M/S.BENZ AUTOMOBILES PVT. LTD, BENZ TOWERS, EDAPPALLY, COHCIN-24. 3. ANUJAN THOMAS, CHORATHIL HOUSE, THIRUVANCHOOR P.O., KOTTAYAM. 4. SUSY ANUJAN THOMAS, CHORATHIL HOUSE, THIRUVANCHOOR P.O., KOTTAYAM. 5. V.A.KUNJU, 68/301, MAITRI CO-OPERATIVE HOUSING SOCIEITY LTD, DAMODAR PARK, LBS MARG, GHOTKOOPAR, MUMBAI-86. 6. H.PARAMESWARAN, HARI NIVAS, CHAKKAMKULANGARA,THIRUPUNITHURA, PIN-68682301. 7. LESLI PALLATH, S/O.JOSEPH PALLATH, CHAKALAKAL ROAD,KOCHI-15. 8. THOMAS GEORGE, KANIANTETHU HOUSE, MANDAMARUTHI, RANNI. Co.Appeal.No. 24 of 2009 9. M.C.MADHU, 105, CANAL ROAD, GIRINAGAR, COCHIN-20. 10. MNB NAIR, SHANKERS, PARAPPILLY ROAD, THIRUVANKULAMLAM. 11. EPHARIM P MAMBILLY, AGED 50, REPUBLIC HOUSE, NJARAKKAL. 12. GIC HOUSING FINANCE LTD, REGISTERED OFFICE AT UNIVERAL BUILDING, IIIRD FLOOR, SIR PM ROAD, FORT MUMBAI,REP. BY SENIOR BRANCH MANAGER. 13. V.K.SANKARANKUTTY, S/O.O.G.MENON,AGED 57 MULLOOR HOUSE, NEAR LISIE JUNCTION,COCHIN-18. 14. M.JAYASANKAR, S/O.V.K.SANKARANKUTTY, MULLOOR HOUSE, NEAR LISIE JUNCTION,COCHIN-18. 14(a) K.P. RAJAGOPALAN, S/O. R.K. MENON, KUNNATH HOUSE, CHITTILANCHERRY P.O., PALAKKAD DISTRICT. 15. VARGHESE K JOSEPH, S/O.K.K.JOSEPH, AGED 46, KUNDUKULAM HOUSE, VENKITANGU P.O., TRICHUR DISTRICT. 16. LAKSHMI NARAYANAN, S/O.I RAMASWAMY IYYER AGED 60, FLAT NO.136, IST BLOCK, NANDINI GARDENS, WEST FORT, TRIVANDRUM. 17. S.KAMALAKSHY AMMAL, W/O.R.LAKSHMI NARAYANAN, AGED 57, FLAT NO.136, IST BLOCK, NANDINI GARDENS, WEST FORT, TRIVANDRUM. 18. VIJAYA SUNDERESH, W/O.R.SUNDERESH, AGED 31, A41, QUEENS APARTMENTS, 59, BANDRA WEST, MUMBAI-50. 19. ANTONY KOTTACKAL, S/O.P.K.M PILLAI. 20. KOTTACKAL HOUSE, MANDAVOOR P.O., MUVATTPUZHA. 21. R.N.SHARMA,S/O.LATE C RAGHAVA IYYER, AGED 52, TC 37/1231, SOUTH STREET, FORT P.O., TRIVANDRUM-23. 22. ISAAC KURIAN, S/O.P.KURIAN ISAAC, AGED 31, TC 12/1410,BRIGADE LANE, VIKAS BHAVAN P.O, TRIVANDRUM. 22(a) SHEEJA ISAAC, W/O. ISACC KURIAN, -DO- -DO- Co.Appeal.No. 24 of 2009 23. J.M.AVENUE FLAT ALLOTEE'S ASSOCIATION, TC 12/1410, BRIGADE LANE, VIKAS BHAVAN P.O., TRIVANDRUM, REPRESENTED BY ITS SECRETARY R.N.SHARMA. 24. INDUS ADVERTISING & MARKETING CONSULTANCY PVT. LTD, 41/4262, METRO PLAZA, IIND FLOOR, MARKET ROAD, COCHIN-14, rep. BY ITS MANAGING DIRECTOR. 25. A.GEETHA, D/O.KAMALAM, NO.49, BLOCK-V, V.J.M GARDENS, PALLIVAKU TEMPLE ROAD, VADUTHALA, KOCHI, ERNAKULAM. 26. SAROJ STEELS PVT. LTD, 29/1219A, SAHODARAN AYYAPPAN ROAD, VYTTILA, KOCHI-19, REPRESENTED BY ITS DIRECTOR, HAMAINDER JAIN. 27. T.K.ELIAS, S/O.MATHAI KURIAN, THATTANKUNNAL, RAMAMANGALAM P.O., ERNAKULAM. 28. K.MURALEEDHARA RAO, DOOR NO.37.3052, SOUTH CHERUPILLY LANE, AZAD ROAD, COCHIN-17. 29. K.NAGAVENI, DOOR NO.37/3052, SOUTH CHERUPILLY LANE, AZAD ROAD, COCHIN-17. 30. J.M.PALACE APARTMENT OWNERS WELFARE ASSOCIATION, REG. NO.ER 939/98, JM PALACE, NORTH FORT GATE, TRIPUNITHURA,PIN-682 301. 31. E.JOSEPH SIMON, S/O.JOSEPH, ELANJIKKAL VEEDU, HOUSE NO.44/117, PUTHIYA ROAD, KALOOR DESOM, ELAMKULAM VILLAGE. 32. SREELA JOSHY, NO.5A, J.M.TOWERS, VADUTHALA, COCHIN-18. 33. GEORGE AUGUSTINE, S/O.K.K.JOHN, BUILDING NO.4G, JM TOWERS, KOCHI-23. 34. ROSAMMA GEORGE, W/O.AUGUSTINE, BUILDING NO. 4G, JM TOWERS, KOCHI-23. 35. V.R.SASIDHARAN UNNITHAN, S/O.VASUDEVAN NAIR, BUILDING NO 3D, JM TOWERS, KOCHI-23. Co.Appeal.No. 24 of 2009 36. LATHA S UNNITHAN, W/O.V.R.SASIDHARAN UNNITHAN, BUILDING NO.3D, JM TOWERS, KOCHI-23. 37. P.V.SATHYAN, S/O.K.K.VASUDEVAN, BUILDING NO.69, JM TOWERS, KOCHI-18. 38. GEETHA, W/O.P.V.SATHYAN, BUILDING NO.69, JM TOWERS, KOCHI-18. 39. GRACY AUGUSTINE, W/O.C.K.AUGUSTINE, BUILDING NO.9E, JM TOWERS, KOCHI-23. 40. SHELTOM LAPORTE, S/O.ALOSCIOUS LAPORTE, RESIDING AT 10G, JM TOWERS, KOCH-23. REP. BY HIS P/A. HOLDER MILFORD LAPORTE, S/O.ALOSCIOUS LAPORTE,BUILDING NO.10G, JM TOWERS, KOCH-23. 41. DHANALAKSHMI BANK LTD, REP. BY ITS CHIEF MANAGER, PALARIVATTOM BRANCH, ERNAKULAM. 42. THANKAMMA JOSEPH, W/O.JOPSEPH CHACKO, MALE MUNDAKKAL, UZHAVOOR (E), KOTTAYAM-34. 43. THANAKAMMA R MENON, W/O.KPR MENON, VADUTHALA, COCHIN-23. 44. SADASIVAN K NAIR, S/O.KUNJU NAIR, NO.11, SURAJ SOCIETY, SUBHANPURA, BARODA 390023, GUJARAT. 45. M.RAM DINESH, ASST. MANAGER, INDIAN BANK, PERMANENTLY RESIDING AT 4/541, JOSEPH ROAD, KOZHIZKODE-32. 46. UMA SARATHCHANDRAN, W/O.DR.K.P.SARATH- CHANDRAN, 27, SKYLINE DRIVE, KEILOT, AUSTRALIA, REP. BY P/A.HODER LATHA GIRILAL, W/O.C.P.GIRILAL, RESIDING AT 2B, PAUL ABROA RESIDENCY, KACHERIPADY,KOCHI-18. 47. N.SASIKUMAR,M S/O.LATE P.NEELAKANDA PILLAI, AGED 46, SWARNA BHAVAN, CHEPPAD P.O., ALLEPPEY DISTRICT. 48. P.O.DEVVASSYKUTTY,S/O.P.D.OUSEPH, H.NO.6B, JM TOWERS, VADUTHALA, COCHIN-23. Co.Appeal.No. 24 of 2009 49. GEETHA VIJAYAN, W/O.VIJAYAN, FLAT NO.6G, JM TOWERS, VADUTHALA, COCHIN-23. 50. SREEVIDYA SURESH, W/O.R.SURESH, AGED 27, KAILAS, HOUSE NO.XI/170, NEAR CASINO THEATER, ALUVA. 51. DR. SAJITHA KUMAR, W/O.D.BABURAJAN, AGED 36, THEKKUMTHALA HOUSE, INDIRAJI ROAD, BMC P.O., VAZHAKALA, COCHIN-21. 52. B.BALAKRISHNAN, S/O.P.KUMAR, AGED 37, B3 EXPRESS TOWERS, LISSIE JUNCTION,KALOOR,COCHIN-17, REP. BY P/A. HOLDER P.KUMAR, S/O.K.K.KARTHA, B3, EXPRESS TOWERS,LISSIE JUNCTION,KALOOR, COCHIN-17. 53. JM TRIBUTES BUILDING ALLOTTEES WELFARE ASSOCIATION, THEKKUMTHALA HOUSE, INDIRAJI ROAD, VAZHAKALA, BMC P.O., COCHIN-21, REP. BY ITS PRESIDENT, P.KUMAR. 54. MOHANAN PILLAI, S/O.JANARDHANAN PILLAI, FLAT NO.1, J.M.RESIDENCY, MELETHAMPANOOR, THIRUVANANTHAPURAM, REP. BY THE P/A.HODER P.NARENDRAN, F-10, NCC NAGAR, PEROORKADA, THIRUVANANTHAPURAM. 55. G.H.ASSOCIATES MAHAKAVI BHARATHIYAR ROAD,KOCHI-35, REP. BY ITS MANAGING PARTNER T.P.GIRISH BABU. 56. M/S.ANUROOPA STONE FLOORINGS, TD ROAD, T.P.GIRISH BABU. REP. BY ITS MANAGING PARTNER R.VENKITESWARA SHENOY. 57. SYNDICATE BANK, HOUSING FINANCE BRANCH, M.G.ROAD, ERNAKULAM REP. BY ITS SENIOR BRANCH MANAGER, T.R.VISWANATHA IYER. 58. BEENA SEBASTIAN, D/O.K.T.SEBASTIAN, ADUPPUKALLUNKAL HOUSE, KONIPADU P.O.,PALAI, REP. BY THE P/A. HOLDER LIJU C.V., S/O.VIJAYAN, CHELIPARAMBIL HOUSE, KARIPPALAM P.O., KOCHI-2. 59. SAPNA GOKULDAS, W/O.GOKULDAS, GEETHANJALI, A91, SRIRAGAM LANE, SASTHAMANGALAM, THIRUVANANTHAPURAM. Co.Appeal.No. 24 of 2009 60. K.P.VASUDEVAN NAIR, A69, KALYAN NAGER, TARASALI ROAD, TARASLI, BARODA-9. 61. RAJAMMA V NAIR, A69, KALYAN NAGER, TARASALI ROAD, TARASLI, BARODA-9. 62. THE FEDERAL BANK LTD, BROADWAY BRANCH, ERNAKULAM. 63. CSK TUBE COMPANY, REP. BY ITS PARTNER AND AUTHORISED SIGNATORY P.V.MANU, AGED 51, S/O.PADMANABHAN NAIR, RESIDING AT NO.2311, BILATHIKULAM HOUSING COLONY, CALICUT-6. 64. COL. K.T.MOHAN, S/O.LATE N.K.THAMBI, SREE KAILAS, YAMUNA NAGAR,CHANGAMPUZHA NAGAR, KALAMASSERY,ERNAKULAM. 65. SHAILAJA MOHAN, W/O. LT. COL.K.T.MOHAN, SREE KAILAS, YAMUNA NAGAR,CHANGAMPUZHA NAGAR, KALAMASSERY,ERNAKULAM. 66. SREEKUKMAR K., S/O.K.RAMACHANDRAN, AGED 37, 3A, REGAL ROSE APARTMENTS, PADAM ROAD, ELAMAKKARA,KOCHI. 67. KALYANI SREEKUKMAR, W/O.SREEKUKMAR , 3A, REGAL ROSE APARTMENTS, PADAM ROAD, ELAMAKKARA,KOCHI. 68. VIKAS M WARRIER, S/O.M.R.WARRIER, SAVITHA, AMBILI NAGAR, TRIPUNITHURA, COCHIN-1. 69. PHILIP DEVASSIA, W/O.K.P.DEVASSIA, AGED 39, GOVERNMENT CO. SERVICE, PERMANENT RESIDENCE AT 11/31A, SOUTH VAZHAKKALA, KAKKANAD (W), COCHIN-30. 70. R.RAMESH CHANDRAN, S/O.M.K.RAMACHANDRAN, AGED 33, NILAKKATHANATHU HOUSE, VALLAMKULAM P.O., THIRUVALLA. 71. ANITHA PARAMWSWARAN, W/O.RAMESH CHANDRAN AGED 29, NILAKKATHANATHU HOUSE, VALLAMKULAM P.O.,THIRUVALLA. 72. B.RAVEENDRAN NAIR, S/O.BALAKRISHNAN NAIR R/A.KRISHNAGIRI,KOONAMTHAI, EDAPPALLY P.O KOCHI-24, REP. BY T.P.BALACHANDRA PANICKER, P/A. HOLDER OF B.RAVEENDRAN NAIR,S/O.PADMANABHA PANICKER,32/1858-D,SURABHI ROAD, PADIVATTOM, EDAPPALLY P.O., KOCHI-24. Co.Appeal.No. 24 of 2009 R31 BY ADV. MR. N. DHARMADAN & BY ADV. MS. RENU D.P. THIS COMPANY APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, ALONG WITH COMP. APPEAL NO. 25 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P.R. RAMACHANDRA MENON, JJ. ............................................................................... COMPANY APPEAL Nos. 24 & 25 OF 2009 ......................................................................... Dated this the 19th November, 2009 J U D G M E N T P.R. Raman, J: Appellants in both the Company Appeals are aggrieved by the order passed by the learned Company Judge on 13th October, 2009 ordering publication of Company Petition for winding up as a further step under Rule 96 of the Company (Court)Rules. Appellant in C.O.A.No.24 of 2009 is the first respondent (the company sought to be wound up) in C.P.No. 37 of 1998 and appellant (Sterling Estates and Properties Ltd.)in C.O.A.No.25 of 2009 is a third party. ( They have filed C.A.No.475 of 2009 for getting themselves impleaded as additional respondent in C.P.No.37 of 1998). 2. It is admitted by the parties that advertisement has already been effected pursuant to the orders issued. Since the COMPANY APPEAL Nos. 24 & 25 OF 2009 2 only prayer is being against the impugned order, this relief has become infructuous. 3. In the course of arguments, it was pointed out that even after the advertisement, further proceedings could be stayed by this court, but we do not find any justifiable reason to do so. But according to the appellants various steps taken to settle the creditors' claims are still pending and that C.A.No. 317 of 2009 is one such application (Annexure-VII). Likewise Sterling Estates and Properties Limited got themselves impleaded in C.A.No.221 of 2007 by order in C.A.No.97 of 2008. Thereafter, they had filed Company Application No.475 of 2009 for getting themselves impleaded as respondent in C.P.No. 37 of 1998 (Annexure -XII). 4. The learned Counsel appearing for the GIC Housing Finance, Adv.Shri K. Jaju Babu submits that there is an agreement between GIC Housing Finance and Sterling Estates and Properties Ltd., for sale of 22 flats earmarked for them in the manner agreed to between the parties. 5. The learned Counsel Adv. Shri Jacob Mathew Manalil representing the applicant in C.A.No. 676 of 2007 submits that COMPANY APPEAL Nos. 24 & 25 OF 2009 3 he has claim over one of the flats in the same building where 22 flats are earmarked for GIC Housing Finance and that he only wants his claim to be satisfied. Adv. Shri N. Dharmadan, learned Sr. Counsel appearing for 31st respondent in C.O.A.No.24 of 2009 (32nd respondent in C.O.A.No.25 of 2009) submits that he has claim for a sum of about Rs. One crore and it has not been disposed of by the Company Court. The Receiver appointed by this Court was also heard. According to him, pursuant to the order passed in Company Appeal 14 of 2009, various claims submitted by the parties have been cataloged and submitted in the form of a report and orders are awaited. 6. What we gather from the submissions made by the parties is that everybody wants a settlement, if possible. At the same time, they cannot wait for an indefinite period. Their apprehension is that if the Company under liquidation is ordered to be wound up, without considering different claims and suggestions made by the parties for an amicable settlement, it will not be in the interest of anybody concerned. In view of the fact that advertisement has already been effected and winding up COMPANY APPEAL Nos. 24 & 25 OF 2009 4 order is yet to be passed by the learned Company Judge, the proposal for an amicable settlement could be examined and orders passed thereon before passing final orders in the winding up petition. P.R. RAMAN, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk