Mohan K. George v. IFCI Limited and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 5TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WP(C).No.3164 OF 2020(U)** ## **PETITIONER:** **MOHAN K. GEORGE, AGED 59 YEARS, S/O. LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV. A.PUSHPADAS, AGED 48 YEARS, S/O. LATE K.ANNAMALA, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695 035.** **BY ADVS. SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENTS:** |**1**|**THE AUTHORIZED OFFICER,**| |---|---| ||**IFCI LIMITED, CONTINENTAL CHAMBERS, 2ND FLOOR,**| ||**142, M.G. ROAD, NUNGAMBAKKAM, CHENNAI-600034,**| ||**HAVING ITS REGD.OFFICE AT IFCI TOWER,**| ||**61 NEHRU PLACE, NEW DELHI-110 019**| |**2**|**THE INTERIM RESOLUTION PROFESSIONAL,**| ||**MR.RAJU PALANIKKUNNATHIL KESAVAN,**| ||**CGNRA-9 (33/11383 A), KODAMASSERY LANE,**| ||**CHALIKKAVATTOM, VENNALA.P.O., KOCHI-682 028,**| ||**KERALA,**| ||**HAVING REG.NO.IBBI/IPA-001/IP-P00801/2017-18/11356**| **3 A.ABDUL RASHEED, (MORTGAGE AND CORPORATE GUARANTOR), HEERA, GOLF LINKS ROAD, TKV NAGAR, KOWDIYAR, THIRUVANANTHAPURAM-695 003.** - **4 M/S. HEERA CONSTRUCTIONS (P) LTD., HEERA PARK, M.P.APPAN ROAD, VAZHUTHACADU, TRIVANDRUM-695014, REPRESENTED BY ITS MANAGING DIRECTOR, MR.ABDUL RASHEED @ A.R. BABU, RESIDING AT HEERA GOLF LINKS ROAD, KOWDIAR, TRIVANDRUM-695 003.** **5 M/S. CONCEPT REALITY INDIA PVT.LTD., (MORTGAGOR AND CORPORATE GUARANTOR), HAVING ITS REGISTERED OFFICE AT SHOP NO.28, BUILDING NO.3, SEAWOOD HERITAGE, PLOT NO.50, SECTOR-4, KHARGHAR, NAVI MUMBAI,MAHARASHTRA-410210, REPRESENTED BY ITS MANAGING DIRECTOR, MR.S CHANDRA BABU, AGED 52 YEARS, S/O.URENDRAN, HAVING PERMANENT ADDRESS AT KARTHIK, KOTTATHALA P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 507, PRESENTLY RESIDING AT MUMBAI A -1801, CONCEPT UNNATHI, CHS LTD., PLOT NO.69,A,B,E & F SECTOR-21,KHARGHAR, NAVI MUMBAI-410 210.** **6 K.G.CHERIYAN, AGED 61 YEARS, S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV. C.T.THOMAS, AGED 60 YEARS, S/O. LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695 035.** **7 K.G.BABUKUTTAN, AGED 60 YEARS, S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV. C.T.THOMAS, AGED 60 YEARS, S/O. LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695 035 8 AMMUKUTTY GEORGE, AGED 83 YEARS, W/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP BY HIS POWER OF ATTORNEY HOLDER ADV. PUSHPADAS, AGED 48 YEARS, S/O. LATE K.ANNAMALA, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695 035** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No. 3164 of 2020 ..4.. ## ALEXANDER THOMAS, J. ------------------------------------ ## W.P.(C) No. 3164 of 2020 -----------------------------------Dated this the 5[th] day of February, 2020 ## J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ - _i. To call for the records leading to Exhibit P19._ - _ii. To issue a writ of certiorari setting aside Exhibit P19._ - _iii. To issue a writ of mandamus directing the 1[st] Respondent to defer from proceedings in furtherance of Exhibit P5 notice._ - _iv. To declare that the Petitioner's and his co-owners' (Respondents 6 to 8) properties which are fraudulently mortgaged by 3 to 5 Respondents cannot be proceeded against for the debts and liabilities of the 4[th] Respondent._ - _v. To declare that as moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 is in force the 1[st] Respondent cannot proceed against the allegedly mortgaged properties of the Petitioner and other co-owners (Respondents 6 to 8) until the proceedings before NCLT, Mumbai, as CP(IB)4447/MB/2018 is finally concluded. And_ - _vi. To issue such other appropriate Writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case.”_ 2. Sri.Liju V.Stephen, learned counsel appearing for the petitioner would submit on the basis of instructions that, leave may be granted to the petitioner to withdraw this Writ Petition (Civil) as certain errors have crept in while W.P.(C) No. 3164 of 2020 **==> picture [18 x 9] intentionally omitted <==** marking the documents produced herewith, and that liberty may be granted to the petitioner to file a fresh Writ Petition (Civil) correcting the said mistakes. Leave is accorded to the petitioner to work out his remedies in the manner known to law. With the said liberty, the above Writ Petition (Civil) will stand dismissed as withdrawn. Sd/- ALEXANDER THOMAS, JUDGE MMG W.P.(C) No. 3164 of 2020 ..6.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE JOINT VENTURE AGREEMENT DATED 13.6.2008 EXECUTED BETWEEN PETITIONERS AND 7TH RESPONDENT** **EXHIBIT P2 A TRUE COPY OF THE SALE DEED NO.1270/09 DATED 5.6.2009 ENTERED BETWEEN 4TH PETITIONER AND 7TH RESPONDENT** **EXHIBIT P3 A TRUE COPY OF THE JOINT VENTURE AGREEMENT DATED 30.1.2012 BETWEEN PETITIONER, 7TH RESPONDENT AND RESPONDENT NOS.8 AND 9** **EXHIBIT P4 A TRUE COPY OF THE GENERAL POWER OF ATTORNEY DATED 30.11.2012 EXECUTED BY THE PETITIONERS AND 7TH RESPONDENT IN FAVOUR OF RESPONDENT NO.9** - **EXHIBIT P5 A TRUE COPY OF THE NOTICE DATED 26.10.2018 ISSUED BY THE IFCI LTD. TO THE PETITIONERS** - **EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 1.5.2019 MADE BY THE 1ST PETITIONER TO THE IFCI LTD, TO INSPECT THE RECORDS WITH REGARD TO THE ALLEGED LOAN** **EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION DATED 3.6.2019 FROM IFCL LTD PERMITTING 1ST PETITIONER TO VERIFY THE RECORDS** **EXHIBIT P8 A TRUE COPY OF THE REPRESENTATION DATE 14.6.2019 MADE BY THE 1ST PETITIONER TO THE IFCI LTD** W.P.(C) No. 3164 of 2020 ..7.. |**EXHIBIT P9**|**A TRUE COPY OF THE REPRESENTATION**| |---|---| ||**DATED 27.8.2019 MADE BY THE 1ST**| ||**PETITIONER TO THE IFCI LTD**| |**EXHIBIT P10**|**A TRUE COPY OF THE ALLEGED POWER OF**| ||**ATTORNEY EXECUTED BY THE PETITIONERS**| ||**IN FAVOUR OF THE 7TH RESPONDENT DATED**| ||**28.3.2015**| |**EXHIBIT P11**|**A TRUE COPY OF THE ALLEGED DEED OF**| ||**INTERIM PERSONAL GUARANTEE ALLEGED TO**| ||**BE EXECUTED BY THE 1ST PETITIONER IN**| ||**FAVOUR OF THE IFCI LTD, DATED**| ||**28.3.2015**| |**EXHIBIT P12**|**A TRUE COPY OF THE ALLEGED DECLARATION**| ||**AND UNDERTAKINGS ALLEGED TO BE**| ||**EXECUTED BY THE PETITIONERS NO.1,2 AND**| ||**4 ALONG WITH RESPONDENTS NO.6,7 AND 8**| ||**I FAVOUR OF IFCI LTD DATED 28.3.2015**| |**EXHIBIT P13**|**A TRUE COPY OF THE ORDER NO.CP(IB)**| ||**4447/MB/2018 DATED 27.3.2019 PASSED BY**| ||**THE NATIONAL COMPANY LAW TRIBUNAL ,**| ||**MUMBAI BENACH**| |**EXHIBIT P14**|**A TRUE COPY OF THE CLAIM PETITION**| ||**DATED 10.4.2019 FILED BY THE 1ST**| ||**PETITIONER**<br>**BEFORE**<br>**THE**<br>**INTERIM**| ||**RESOLUTION PROFESSIONAL APPOINTED BY**| ||**THE**<br>**NATIONAL**<br>**COMPANY**<br>**LAW**| ||**TRIBUNAL,MUMBAI BENCH**| |**EXHIBIT P15**|**A TRUE COPY OF THE CMP NO.3061/2019**| ||**FILED BY THE 1ST PETITIONER BEFORE THE**| ||**JUDICIAL MAGISTRATE COURT, TRIVANDRUM**| ||**DATED 4.0.2019**| |**EXHIBIT P16**|**A TRUE COPY OF THE FIR IN CRIME**| ||**NO.1743/2019 OF THUMBA POLICE STATION**| ||**DATED 7.10.2019**| W.P.(C) No. 3164 of 2020 ..8.. **EXHIBIT P17** **EXHIBIT P18** **EXHIBIT P19** **EXHIBIT P20** **EXHIBIT P21** **EXHIBIT P22** **A TRUE COPY OF THE REPRESENTATION MADE BY 1ST PETITIONER TO 2ND RESPONDENT DATED 16/10/2019** **A TRUE COPY OF THE REPRESENTATION MADE BY 1ST PETITIONERS TO 2ND RESPONDENT DATED 16.10.2019** - **A TRUE COPY OF THE REPRESENTATION MADE BY THE 1ST PETITIONER TO THE 5TH RESPONDENT, DATED 27.10.2019** - **A TRUE COPY OF THE FIR DATED 10.4.2019 REGISTERED BY THE 5TH RESPONDENT AGAINST THE RESPONDENTS NO.8,9 AND FEW OTHERS IN RC3(A)/2019/CBI/ACB/COCHIN** **A TRUE COPY OF THE GENERAL POWER OF ATTORNEY DATED 19.9.2019 EXECUTED BY THE PETITIONERS NO.1 AND 2** **A TRUE COPY OF THE GENERAL POWER OF ATTORNEY DATED 19.9.2019 EXECUTED BY THE PETITIONER NO.3 AND 4**