OSA No. 47 of 2019

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 07-09-2026

DATE OF DECISION : 23-09-2026

CORAM

THE HONOURABLE MR JUSTICE P.VELMURUGAN

AND

THE HONOURABLE MR.JUSTICE GK.MUTHUKUMAAR

OSA No. 47 of 2019

and

CMP No. 4873 of 2019

CNR:{HCMA010354512019}

1. D.Venkatesh

S/o. Late Dyapaiaha

No.209, D.G. Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

2. Smt.Lavanya

W/o. D.Venkatesh

No.209, D.G.Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

3. Diwakar Gowda

S/o. D.Venkatesh

No.209 D.G.Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

4. Smt.Gopamma

W/o. Late Nanjappa

No.209, D.G. Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

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OSA No. 47 of 2019

5. Manjunath

S/o. Late Nanjappa

No.209, D.G.Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

6. Smt.Kalavathi

W/o.Srinivas, D/o.Late Nanjappa

Chokkarasanapalli Village

Kagganuru Post, Hosur Taluk

Krishnagiri District

7. Ramya

D/o. Late Nanjappa

No.209, D.G.Complex, Surya City

Iggalur Village, Attibele Hobli

Chandapura Post, Anekal Taluk

Bangalore District

8. Mrs.Bayyamma @ Bharathi

W/o. Dyapaiha,

Sonapanahalli Village

Kodainur Post, Malur Taluk

Kolar District

Appellants

Vs

1. M/s.Achievers Agri India Pvt.Ltd.,

Rep.by its Managing Director

S.Sivakumar

Registered Office at Subam Towers

Second Floor, Mayyannur Main Road

Near Five Road, Salem 636 004

2. The Official Liquidator as

Provisional Liquidator of

M/s. Achievers Agri India (P) Ltd.,

(In Liquidation) High Court, Chennai 600 104

Respondents

Memorandum of Grounds of Original Side Appeal under Order XXXVI,

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Rule 9 of the Original Side Rules read with Clause 15 of the Letters Patent,

against the fair and decretal order dated 29.01.2019 made in Com.Appln.No.986

of 2015 in C.P.No.54 of 2015.

For Appellants:Mr.K.V.Subramanian

Senior Counsel for

Mr.Abdul Wahab M.A.

For Respondents:Mr.Gopalakrishnan

Official Liquidator for R2

R1 – (Company under Provisional

Liquidation)

JUDGMENT

P.Velmurugan J.

This original side appeal is directed against the fair and decretal order

dated 29.01.2019 passed in Comp.A.No.986 of 2015 in C.P.No.54 of 2015.

2. The appellants filed the Comp.A.No.986 of 2015 praying to declare the

order dated 21.04.2015 made in C.P.No.54 of 2015 as inapplicable insofar as the

appellants’ properties, namely, the School and the Land comprised in Khuski

Survey No.160/1 measuring an extent of 1 Acre 26 Guntas out of 1 Acre 32

Guntas, another property bearing Khuski Survey No.153 measuring 8 Guntas

and Tari of 13 Guntas in all 21 Guntas and another property bearing Tari Survey

No.154/1 measuring 16 Guntas and another property bearing Tari Survey

No.154/2 measuring 10 Guntas, totalling 2 Acres 33 Guntas, all the said lands

situated at Iggalur Village, Attibele Hobli, Chandpura Post, Anekal Taluk,

Bangalore District, State of Karnataka, as the same do not belong to the 1st

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respondent and consequently hand over the possession of the properties back to

the appellants, since they are the absolute owners of the aforesaid properties.

3. The case of the appellants is that one Mr.S.Sivakumar, the Managing

Director of M/s.Achievers Agri India Pvt. Ltd., claiming himself to be the

forerunner in the field of developing education in Tamil Nadu, had approached

the appellants with a proposal to start a school and the appellants also entered

into a lease of the property for a period of 99 years for the purpose of running a

school in the said lands in favour of M/s.Achievers Vidhya Kendra Foundation

(in short ‘the Kendra Foundation’) and the said Kendra Foundation was jointly

started by the appellants and Sivakumar. As per the lease deed, the Kendra

Foundation has paid a sum of Rs.1,48,500/- towards full ground rent and

deposited a sum of Rs.5,00,000/- towards lease advance amount and the school

was constructed by utilising the funds of the appellants. Since the said

Sivakumar had become indebted to various creditors and institutions and

suffered severe financial crisis, the appellants, having invested huge sums of

money in setting up the infrastructure to run the school, had decided to run the

school at their costs since September, 2014 and subsequently, the said

Sivakumar had initiated a winding up proceedings, showing as if the lease deed

dated 01.07.2010 was executed in favour of M/s.Achievers Agri India Pvt. Ltd,

in which a notice was issued and a provisional liquidator was also appointed to

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deal with M/s.Achievers Agri India Pvt. Ltd. When the Official Liquidator came

to take possession of the property, it came to light that M/s.Achievers Agri India

Pvt. Ltd., had shown the properties of the appellants as properties of

M/s.Achievers Agri India Pvt. Ltd. In fact, M/s.Achievers Agri India Pvt. Ltd.,

had indulged in EMU scam, in which the appellants themselves are victims.

Since the properties were never leased out to M/s.Achievers Agri India Pvt.

Ltd., the same cannot be taken over by the Provisional Liquidator and the act of

the 2nd respondent in taking symbolic possession of the appellants' properties is

highly untenable in law. On an earlier occasion, C.A.No.667 of 2015 was filed

with the same prayer and due to miscommunication between the erstwhile

counsel and the appellants, several facts were not disclosed in the said

application and therefore, the application has been filed with adequate facts and

it is also prayed for withdrawal of the earlier application.

4. The learned single Judge, while considering the Comp.A.No.986 of

2015 along with other connected applications, after hearing both sides, passed

the following order:-

“According to the learned counsel for the applicants, an

application in C.A.No.666 of 2015 was filed by the Official

Liquidator, seeking permission to take possession of the

School viz., Achievers International Academy situated at

Surya City, Phase-I, Anekal Road, Chandapura,

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Bangalore-560 099 (now renamed as “D.American

International School), situated at Surya City, Phase-I, Anekal

Road, Chandapura, Bangalore, wherein on 26.08.2015, this

Court had passed a detailed order, holding that the said school

in Karnataka shall also be vested with the Official Liquidator.

The relevant portion of the order dated 26.08.2015 is extracted

hereunder:

“5. Considering the facts and circumstances

of the case and also considering the report filed by

the learned Official Liquidator, this Court is

inclined to pass the following order:

(i) The Official Liquidator is directed to

take over the possession of the school viz.,

Achievers International Academy (now remaned

as “D.American International School”) situated at

Surya City, Phase-I, Anekal Road, Chandapura,

Bangalore-560 099 during holiday;

(ii) The Commissioner of Police, Karnataka

is directed to give police protection to the Official

Liquidator at the time of taking possession of the

said school;

(iii) The Commissioner of Police,

Karnataka is further directed to monitor the

sequence of events while taking possession of the

said school; and

(iv) It is open to the Commissioner of

Police, Karnataka to take photographs or

videograph of the events wherever and whenever

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it is necessary.”

5. The applicants state that M/s.Achievers Agri India (P)

Ltd. and D.American International School are not one and the

same and it is a different entity and it cannot, at any stretch of

imagination, be brought under liquidation. It is further stated

that a lease deed was entered into on 01.07.2010, wherein

there is a specific mention about the Kendra Foundation, a

company registered under Section 25 of the Companies Act,

1956.

6. Since this Court found that there is something fishy

in the entire issue, the School was ordered to be handed over

to the Official Liquidator. It is seen that even though the order

of taking possession has been passed as early as in the year

2015, as on date, it does not vest with the Official Liquidator

and it is being maintained by the very same Management,

though symbolic possession has been given.

7. The case of the 1st respondent is that even though it

has been stated by the applicants that they are going to

withdraw Comp.A.No.667 of 2015, as on date, the said

application is pending and no orders have been passed and

repeated applications are being filed to defeat the rights of

secured creditors and others. In reply to the above, learned

counsel for the applicants would submit that in Paragraph

No.13 of Comp.A.No.985 of 2015, it has been clearly stated

that there was a collusion between some of the Directors and

the erstwhile Advocate.

8. Admittedly, Comp.A.No.667 of 2015 has not yet

been withdrawn and the question whether there is a collusion

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between some of the Directors and the erstwhile Advocate

cannot be gone into in these applications and it is for the

applicants to approach the appropriate forum to establish the

case. From the pleadings before the Karnataka Court, it is

clear that the entire property belongs to M/s.Achievers Agri

India (P) Ltd. and the applicants cannot attempt to defeat the

earlier order of this Court, by which there was an appointment

of the provisional Official Liquidator and since the symbolic

possession was given, it is the duty cast upon the applicants

and other Directors of the Kendra Foundation to produce all

the records before the Official Liquidator for the purpose of

scrutinizing the records with regard to flow of money of the

said company.

9. The issue, as to whether M/s.Achievers Agri India (P)

Ltd., and D.American International School are one and the

same, cannot be adjudicated in the present applications and it

has to be elaborately addressed in the main C.P.No.54 of 2015.

However, in order to safeguard the interest of parties,

including the secured creditors, who are before this Court, this

Court thinks it appropriate that the school, namely, Achievers

International Academy (now renamed as “D.American

International School) should be vested with the Official

Liquidator, as there was an order as early as on 2015 itself.

10. Accordingly, these applications are closed with the

following directions:

i) the Official Liquidator shall immediately take over

the possession of Achievers International Academy, situated at

Surya City, Phase-I, Anekal Road, Chandapura,

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Bangalore-560 099 (now renamed as “D.American

International School);

ii) the details of assets and liabilities shall be furnished

to the Official Liquidator and also the details of properties

acquired by the school, by the applicants, name of persons

from whom they have acquired the properties, details of

money and the passport details of Ex-Directors and the present

Directors have got to be furnished to the Official Liquidator;

iii) the Passports of the Ex-Directors and the present

Directors of M/s.Achievers Agri India (P) Ltd., and the

Kendra Foundation shall be handed over to the Official

Liquidator for custody and in case they want to go abroad,

prior permission should be obtained from the Official

Liquidator;

iv) they shall also intimate the place where they are

going to travel and reside and furnish the complete address

and the telephone number of that place to the Official

Liquidator and without the orders of this Court, they should

not leave this Country.

With the above observations and directions, these

Applications are closed.”

5. Aggrieved thereby, the present original side appeal has been filed

before this Court.

6. The learned Senior Counsel, by way of filing written submissions,

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contended that when the appellants are neither parties nor shareholders or

directors and do not have any right whatsoever or any connection whatsoever so

far as the management of the company under liquidation is concerned, an order

affecting their right of ownership over the immovable property, which has been

proved by the production of the partition deed as well as the admission of the

1st respondent, erstwhile Managing Director of the winding-up company,

cannot be passed without notice to them. In such circumstances, the impugned

order against the appellants is violative of the principles of natural justice and

also Section 457(1)(c) of the Companies Act, 1956, as the said order directs the

Official Liquidator to take over the Bangalore school/property claimed by the

appellants. Even the documentary chain placed before this Court identifies the

underlying owners of the property, the registered 99-year lease in favour of

Achievers Vidhya Kendra Foundation (AVKF) and the Power of Attorney

executed in favour of Achievers Agri India Pvt. Ltd., in relation to the project.

However, if it is the case of the Official Liquidator that Achievers Agri India

Pvt. Ltd. subsequently acquired an independent proprietary or leasehold interest

in the said property, the specific legal instrument by which such interest was

acquired must necessarily be identified and established, as mere financial

involvement, managerial participation or association with the school or the

educational project cannot, in law, by itself create or establish an independent

right, title or interest in the underlying immovable property. There must be a

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legally recognised instrument or transaction by which such proprietary or

leasehold rights were transferred or created in favour of the company under

liquidation. When there is no document, particularly a registered instrument,

establishing that the ownership or the relevant leasehold interest in the land or

the school building was ever transferred to or acquired by M/s. Achievers Agri

India Pvt. Ltd., the mere fact that the school was operated or managed in

connection with the said company cannot, by itself, convert the property into an

asset of the company under liquidation. Therefore, there is a fundamental

missing legal link between the property admittedly belonging to the appellants'

family and the conclusion that the same constitutes an asset of the company

under liquidation. Unless that link is established by a legally valid document

and upon proper determination of the rights of the parties, the property cannot

be brought within the liquidation estate merely on the basis of the company's

association with the school or the project.

7. The learned Senior Counsel also contended that though the Company

Court retains inherent jurisdiction under Rule 9 to pass appropriate orders in the

interests of justice to prevent abuse of its process, however, an earlier

interlocutory order does not, in appropriate circumstances, prevent the Court

from reconsidering the matter at a later stage of the same litigation, especially

when such an order prejudicially affects the independent proprietary rights of a

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person who was not a party to the original proceedings, such person is entitled

to approach the appellate Court for appropriate relief. Therefore, the present

appeal cannot be defeated merely on the ground that the appellants were not

parties to the winding up proceedings, when the impugned order directly affects

the appellants’ independent rights over the schedule property. The appellants,

being applicants in C.A.No.986 of 2015 whose asserted property rights were

directly affected by the order under appeal, are persons aggrieved and without

prejudice, if this Court considers formal leave necessary because of their status

vis-à-vis the original C.P.No.54 of 2015, the appellants respectfully seek such

leave in the present appeal. Further, the subject land is asserted by the appellants

and other owners as their property through the registered lease deed dated

01.07.2010, which is the foundational transaction for the educational project.

When the registered lease identifies M/s Achievers Vidhya Kendra Foundation

as the lessee for the educational institution and not a registered lease in the

name of M/s Achievers Agri India Pvt. Ltd., although the Power of Attorney has

been executed for obtaining permission, licence and related approvals in

connection with the AVKF educational project, followed by the registered

surrender deed dated 23.11.2015 executed by AVKF surrendering and returning

the property to the owners, the appellants were put in possession of not only the

school building thereon, but also the land in which the construction had been

made and thus the lease stands determined as per Section 106 read with Section

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111(e) of the Transfer of Property Act. But the case of the Official Liquidator is

not based on any document, much less any registered document regarding the

transfer of title of the land or the building thereon and no such document has

been produced. Therefore, under Section 5 read with Sections 105 and 106 of

the Transfer of Property Act, there is no lease at all and no right over either the

land or the school building attached thereto so as to form the asset of the

company under liquidation. If the respondents seek to attribute AVKF’s

leasehold or property rights to Agri India, the legal and factual foundation for

doing so must be established, as the common management, common personnel,

common address or financial dealings are not themselves a conveyance or

assignment. Moreover, the District Court at Bengaluru has also recorded that

the association of Sivakumar with both Agri India and AVKF did not by itself

establish the necessary connection, when the leasehold right of AVKF had been

extinguished by the registered surrender and ultimately directed the release of

the schedule property from attachment. However, the present appeal stands

independently upon the registered property documents, separate corporate

identity, statutory limits of liquidation custody, the evidence already on record

and the reasoning of the impugned order.

8. Drawing our attention to the Official Liquidator’s report dated

04.02.2016 and the later material filed in the appeal containing substantial

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references to school management, alleged expenditure, possession, common

personnel and the relationship between Agri India and AVKF, it was contended

that those matters may justify investigation into the financial affairs of the

company and they do not establish that the registered leasehold of AVKF

became an asset of Agri India. The later OL objections cannot transform an

unresolved property question into a completed title adjudication merely by

repetition of the proposition that the school was an asset of Agri India, as the

Court should test that proposition against the registered lease, the corporate

identity of AVKF, the Power of Attorney and the surrender deed.

9. In view of the above, the learned Senior Counsel would finally submit

that the registered lease identifies AVKF, a separate juristic entity, as the lessee;

that the Power of Attorney explains authority to act and it does not convey title;

that the alleged expenditure and management explain financial or operational

association, but they do not, without a further legal instrument, create

proprietary title; that the registered surrender was by AVKF; that if Agri India

acquired a separate proprietary interest in the identified property, the instrument

creating that interest must be identified; that the statutory liquidation machinery

protects the property of the company in liquidation, but it does not enlarge the

liquidation estate; that the impugned order itself records that the foundational

identity issue could not be adjudicated in the Company Applications, yet directs

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immediate possession of the very property whose legal character remained

unresolved; that the later reports may furnish material for investigation, but they

cannot substitute for the missing proprietary bridge. Hence, the impugned order

insofar as it treats the subject Bangalore property/school as an asset of Agri

India or directs the Official Liquidator to take possession on that footing, is

unsustainable in law. The learned Senior Counsel also relied upon the following

judgments in support of his contentions.

1. Ghanshyam v. Yogendra Rathi, (2023) 7 SCC 361

2. Prem Singh and others v. Birbal and others, (2006) 5 SCC 353

3. P.T.Chathu Chettiar v. Kariat Kunnummal Kanaran, 1983 SCC OnLine

Ker 92

4. H.Anjanappa and others v. A.Prabhakar and others, 2025 SCC OnLine

SC 183

5. National Conduits (P) Ltd v. S.S.Arora, (1967) 37 Comp Cas 786

6. Smt.Sukhrani (Dead) by Lrs & others v. Hari Shanker and others,

(1979) 2 SCC 463

7. Smt.Jatan Kumar Golcha v. M/s Golcha Properties (P) Ltd. (in

liquidation), (1970) 3 SCC 573

8. S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs,

(1994) 1 SCC 1

9. Ningawwa v. Byrappa Shiddappa Hireknrabar and others, 1968 SCC

OnLine SC 206

10. Balwant Rai Saluja and another v. Air India Limited and others,

(2014) 9 SCC 407

11. Suraj Lamp and Industries Private Limited v. State of Haryana and

another, (2012) 1 SCC 656

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12. Bacha F.Guzdar v. Commissioner of Income Tax, (1954) 2 SCC 563

13. Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179

14. Rangammal v. Kuppuswami, (2011) 12 SCC 220

15. Union of India v.Vasavi Cooperative Housing Society Ltd., (2014) 2

SCC 269

16. Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49

10. The Official Liquidator representing the 1

st

respondent company

under liquidation, relying upon the report filed in the stay petition, would

submit that in compliance with the winding up order, after taking symbolic

possession of the Bengaluru school on 13.09.2015, a meeting was convened on

12.10.2015 with the ex-directors viz., 1. Shri.S.Sivakumar, 2. Shri.R.Madesh, 3.

Shri.V. Padmanabha Soundappan, 4. Shri.R.Narayanappa and also

Shri.D.Venkatesh, the first appellant along with his counsel, in which the first

appellant informed that he had invested the entire money for construction

planning and other approvals approximately to the tune of Rs.4,02,89,311/- and

he produced a statement detailing such expenses. Whereas the ex-director Shri

Sivakumar stated that the statement of expenses belong to another construction

activity nearby and the ex-director disputed the statement of expenses. Further,

the Assistant Official Liquidator who conducted the meeting requested

Shri.Venkatesh to produce a statement that details transfer of funds from his

personal account towards the bills having details such as the date of transaction,

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account origin (from which payment was made), beneficiary account number &

name and corresponding bill/invoice details. In this regard, the Official

Liquidator relied upon a copy of the minutes of the meeting dated 12.10.2015

marked as Annexure-A. However, no such statement was produced by the

appellant herein. He would further submit that in terms of the order dated

31.08.2016 in C.A.Nos.569 of 2016, 981 & 982 of 2015, 121 & 122 of 2016,

998 of 2015 and 984 to 986 of 2016, Shri Sivakumar, in the capacity of Ex-

Managing Director of Achievers Agri India Pvt. Ltd., in the form of affidavit,

stated that Achievers Vidya Kendra Foundation was created only for the purpose

of running the School at Bengaluru and as per the trust deed Shri Venkatesh and

Shri Manjunath were only non-active trustees and the school was run under the

care and control of M/s.Achievers Agri India Pvt. Ltd., as marked in

Annexure-B. The ex-director further stated in para 9 of the aforesaid affidavit

that the appellants herein have filed a case, A.A.Case No.5001 of 2015 before

the Hon'ble Sessions Judge at Anekal, Karnataka making the company under

provisional liquidation as respondent, wherein it was stated that the company

under provisional liquidation has established and running the educational

institution on the scheduled properties under the name and style of 'Achievers

International Academy' from the academic year 2012-13 [Classes from LKG to

7th Standard (ICSE Syllabus)] to academic year 2013-14, as marked in

Annexure-C. Further, it is ascertained from the said affidavit that the school has

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been run by the company under provisional liquidation upto the academic year

2013-14 and it is not possible to run the school without the buildings and

superstructures and amenities. In view of the affidavit filed by the ex-director

reflecting a true and fair view, the Official Liquidator is of the view that the

school has been constructed by utilising the funds of the company under

liquidation only. However, the Official Liquidator will file an application for

appointment of a Chartered Accountant to ascertain all affairs of the company

under liquidation in the interest of the body of creditors of the company under

provisional liquidation so that if any asset not yet disclosed will also be

identified and put for sale. As per the information provided by the ex-

management of the company under provisional liquidation, they have formed

Trust for each school, namely, Bless Charitable Trust for the school at Hosur,

New Everest Educational Trust for the school at Dharmapuri and Achievers

Vidya Kendra Foundation for the school at Bengaluru and Achievers Vidya

Kendra Foundation was having control over the School at Bengaluru since 2012

upto 2014. It was also ascertained from the ex-management/ex-director that the

entire controlling system of the school was with the ex-management of the

company under provisional liquidation.

11. It was also pointed out that the registered office of Achievers Agri

India Pvt. Ltd., (in provisional liquidation) and Achievers Vidya Kendra

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Foundation are one and the same at 2nd Floor, Subham Towers, Meyyanur

Road, Salem 636 004. As stated by Shri.Sivakumar in his affidavit (Annexure-

B), the Section 25 Company i.e., Achievers Vidya Kendra Foundation has been

formed by utilising the funds of Achievers Agri India Pvt. Ltd., (in provisional

liquidation) and the said Section 25 company formed for the purpose of running

the school at Anekal, Bangaluru by utilising the funds of the company under

provisional liquidation. As per the back papers of the affidavit of the present

OSA, Achievers Vidhya Kendra Foundation was incorporated on 04.06.2010.

As per the enclosures of the present OSA by the appellant herein,

Shri.Narayanappa, Shri.Madesh and Shri.Sivakumar, who are ex-Directors of

the company under provisional liquidation, were also the Directors of Achievers

Vidhya Kendra Foundation (along with Shri D.Venkatesh (appellant herein) and

Shri Manjunath) and they resigned their directorship from Achievers Vidhya

Kendra Foundation vide their letter dated 25.02.2014, 20.04.2014 and

17.07.2014 respectively. However, the said fact has been denied by the Ex-

director and they stated that the letters of resignation referred above are

fabricated. As per the Master data of Ministry of Corporate Affairs, the status of

Achievers Vidhya Kendra Foundation is Active with the Directorship of

Shri D. Venkatesh and Shri Manjunath. As per the statement of the appellant

herein, Achievers Vidya Kendra Foundation has surrendered the lease by a

registered deed of surrender of lease dated 23.11.2015. The Official Liquidator

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is of the view that in the absence of the ex-directors of the company under

provisional liquidation, Shri.D.Venkatesh (the appellant herein) and

Shri.Manjunath have surrendered the lease deed. Before the cancellation deed,

they might have utilised optimum funds of the company under provisional

liquidation to maintain the school in question; that the appellant herein had

utilised the funds of company under provisional liquidation for maintaining the

School in question and suppressing the fact and providing false information that

the School in question belongs to him. Since the transaction with regard to the

School in question have taken place prior to winding up of the company under

provisional liquidation by the ex-management and the functions of the school

and formation etc., was done by them and relevant documentary evidences are

known to ex-directors of the company under provisional liquidation, they may

be impleaded as parties in the interest of the body of the creditors of the

company under provisional liquidation. In view of the foregoing, the Official

Liquidator contended that the present OSA is not maintainable and hence

prayed to dismiss the same.

12. We have considered the submissions and perused the materials

available on record.

13. The specific case of the appellants is that they are the absolute owners

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of the immovable properties under the deed of partition dated 26.02.2007 in

which the school building is situated and when there is no document,

particularly a registered instrument, establishing that the ownership or the

relevant leasehold interest in the land or the school building was ever

transferred to or acquired by the company under provisional liquidation, the

mere fact that the school was operated or managed in connection with the said

company cannot, by itself, convert the property into an asset of the company

under provisional liquidation. Therefore, the appellants filed the

Comp.A.No.986 of 2015 seeking to declare the order dated 21.04.2015 made in

C.P.No.54 of 2015 as inapplicable insofar as the appellants’ properties, namely,

the land and the school building and to handover the possession back to the

appellants, as they do not belong to the company under provisional liquidation.

However, the learned single Judge, without considering the material facts that

the immovable properties are the exclusive properties of the appellants, taking

note of the earlier order dated 26.08.2015, simply closed the application inter

alia directing the Official Liquidator to take over possession of the Achievers

International Academy (now renamed as D.American International School)

situated at Bengaluru. Therefore, the impugned order is liable to be set aside.

14. The Official Liquidator representing the company under provisional

liquidation has contended that as per the statement made by the ex-director

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OSA No. 47 of 2019

Shri.Sivakumar in the meeting held on 12.10.2015, the statement of expenditure

furnished by the first appellant belongs to another construction activity nearby

and since the ex-director disputed the said statement, the Assistant Official

Liquidator requested Shri.Venkatesh (first appellant herein) to produce a

statement detailing the transfer of funds from his personal account towards the

bills specifying the date of transaction, account origin (from which payment was

made), beneficiary account number with name and corresponding bill/invoice

details. However, no such statement has been produced by the first appellant

herein. When it is ascertained from the ex-management/ex-director that the

entire controlling system of the school was with the ex-management of the

company under provisional liquidation, the impugned order requires no

interference.

15. The core point for consideration in this appeal is as to whether the

application filed by the appellants in Comp.A.No.986 of 2015 in C.P.No.54 of

2015 is maintainable to adjudicate the claim that the school and the land are the

exclusive properties of the appellants.

16. Admittedly, pursuant to the order dated 21.04.2015 passed by the

Company Court in C.P.No.54 of 2015 filed by the first respondent, the Official

Liquidator attached to this Court was appointed as the Provisional Liquidator to

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OSA No. 47 of 2019

take charge of the assets of the first respondent company, namely, M/s

Achievers Agri India Pvt. Ltd., having its registered office at Salem including

the school, namely, Achievers International Academy (now renamed as

D.American International School) functioning at Bengaluru. It is also admitted

by the appellants that pursuant to the order passed by the Company Court in

Comp.A.No.666 of 2015 in C.P.No.54 of 2015 directing the Official Liquidator

to take over possession of the school at Bengaluru, the appellants filed the

Comp.A.No.986 of 2015 seeking to declare the order dated 21.04.2015 passed

in C.P.No.54 of 2015 as inapplicable insofar as the appellants’ properties,

namely, the school and the land situate at Bengaluru and to handover possession

back to the appellants, claiming that the company under provisional liquidation

and the D.American International School are not one and the same and they are

separate entities. The learned single Judge, taking note of the earlier order

appointing the provisional liquidator to take charge of the assets of the company

and only symbolic possession was given in respect of the property/school at

Bengaluru, and also considering that the points urged by the appellants can be

adjudicated only in the main C.P.No.54 of 2015 and not in the company

application, closed the application by issuing the directions (i) to (iv) as

contained in paragraph 10 of the impugned order.

17. Moreover, the report filed by the Official Liquidator reveals that in

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OSA No. 47 of 2019

terms of the order dated 31.08.2016 made in C.A.Nos.569 of 2016, 981 & 982

of 2015, 121 & 122 of 2016, 998 of 2015 and 984 to 986 of 2016, Shri

Sivakumar, in the capacity of Ex-Managing Director of Achievers Agri India

Pvt. Ltd., by way of an affidavit, stated that Achievers Vidya Kendra Foundation

was created only for the purpose of running the school at Bengaluru and as per

the trust deed Shri Venkatesh and Shri Manjunath were only non-active trustees

and the school was run under the care and control of M/s.Achievers Agri India

Pvt. Ltd. The ex-director further stated in para 9 of the aforesaid affidavit that

the appellants herein have filed a case, A.A.Case No.5001 of 2015 before the

Hon'ble Sessions Judge at Anekal, Karnataka making the company under

provisional liquidation as respondent, wherein it was stated that the company

under provisional liquidation has established and running the educational

institution on the scheduled properties under the name and style of 'Achievers

International Academy' from the academic year 2012-13 [Classes from LKG to

7th Standard (ICSE Syllabus)] to academic year 2013-14 and it is not possible

to run the school without the buildings and superstructures and amenities. It was

also ascertained from the ex-management/ex-director that the entire controlling

system of the school was with the ex-management of the company under

provisional liquidation. It was also pointed out that the Section 25 Company i.e.,

Achievers Vidya Kendra Foundation has been formed by utilising the funds of

Achievers Agri India Pvt. Ltd., (in provisional liquidation) and the said Section

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OSA No. 47 of 2019

25 company was formed for the purpose of running the school at Anekal,

Bangaluru by utilising the funds of the company under provisional liquidation.

The materials filed by the appellants show that Shri.Narayanappa, Shri.Madesh

and Shri.Sivakumar, who are ex-Directors of the company under provisional

liquidation, were also the Directors of Achievers Vidhya Kendra Foundation

(along with Shri D.Venkatesh (first appellant herein) and Shri Manjunath (fifth

appellant herein) and they resigned their directorship from Achievers Vidhya

Kendra Foundation vide their letter dated 25.02.2014, 20.04.2014 and

17.07.2014, respectively. However, the said fact has been denied by the ex-

director stating that the letters of resignation referred above are fabricated. Even

the Master data of Ministry of Corporate Affairs shows the status of Achievers

Vidhya Kendra Foundation is Active with the Directorship of Shri D.Venkatesh

and Shri Manjunath. As per the statement of the appellant herein, Achievers

Vidya Kendra Foundation has surrendered the lease by a registered deed of

surrender of lease dated 23.11.2015. However, the Official Liquidator is of the

view that in the absence of the ex-directors of the company under provisional

liquidation, Shri.D.Venkatesh (the first appellant herein) and Shri.Manjunath

have surrendered the lease deed and before the cancellation deed, they might

have utilised optimum funds of the company under provisional liquidation to

maintain the school in question. Since the transaction with regard to the School

in question have taken place prior to winding up process initiated in respect of

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OSA No. 47 of 2019

the company under provisional liquidation by the ex-management and the

functions of the school and formation etc., was done by them and relevant

documentary evidences are known to the ex-directors of the company under

provisional liquidation, the Official Liquidator sought to implead them as

parties.

18. On a reading of the entire materials, this Court is of the view that the

claim of the appellants can be adjudicated only if the appellants and the other

Directors of Kendra Foundation produce all the records before the Official

Liquidator for the purpose of scrutiny with regard to the flow of money of the

said company together with the assets and liabilities as well the details of

properties acquired by the school along with the names of persons from whom

they have acquired the properties, source of money, to find out whether the

company under provisional liquidation and D.American International School

are separate entities and the subject properties are the exclusive properties of the

appellants, which cannot be decided in the company application, as held by the

learned single Judge. Equally the proposition of law laid down by the Hon’ble

Supreme Court in the decisions cited by the learned Senior Counsel for the

appellants are distinguishable to the facts and circumstances of the present case.

Under these circumstances, finding no grounds whatsoever to interfere with the

impugned order, this original side appeal is dismissed. However, the questions

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OSA No. 47 of 2019

of law raised by the learned Senior Counsel for the appellants and other facts

regarding title are left open to be adjudicated before the Company Court in the

main C.P.No.54 of 2015. Consequently, the interim order stands vacated and

the connected CMP is also closed. Considering the facts and circumstances of

the case, there shall be no order as to costs.

(P.VELMURUGAN, J.) (GK.MUTHUKUMAAR, J.)

23-09-2026

Index:Yes/No

Speaking/Non-speaking order

Internet:Yes

Neutral Citation:Yes/No

ss

To

1. The Sub Assistant Registrar (O.S.)

High Court, Madras

2. The Official Liquidator

As Provisional Liquidator of

M/s. Achievers Agri India (P) Ltd.,

(In Liquidation) High Court

Chennai 600 104

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OSA No. 47 of 2019

P.VELMURUGAN, J.

AND

GK.MUTHUKUMAAR, J.

ss

Judgment in OSA No. 47

of 2019

23-09-2026

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