9911796707
TMI Blog1989 (11) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... endency of this petition on February 9, 1984, the company entered into tenancy agreements with each of the applicants, giving to the applicants on tenancy basis various portions of a godown belonging to the company and situated at Lower Parel on terms and conditions set out in the agreements of tenancy all dated February 9, 1984. The total area so let out by the company to the applicants taken together admeasures around 20,000 sq.ft. Under the agreements, an extremely low monthly rent was fixed. Each of the tenants was, however, required to give a substantial security deposit. The company agreed to return the security deposit without interest to the tenant concerned on the tenant handing over vacant and peaceful possession of the tenanted p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt judge's summons praying that it may be declared that the official liquidator is not entitled to evict the applicants from the said premises unless the official liquidator first pays to them an aggregate amount of Rs. 40 lakhs which was received by the company from the applicants under the said agreements of February 9, 1984. Under an order of this court date August 31, 1989, the applicants were directed to first hand over possession of the premises to the official liquidator without prejudice to their claim for refund of Rs. 40 lakhs. Accordingly, in the first week of September, 1989, the applicants have handed over possession of the said premises to the official liquidator. The only question which now survives is the question of retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany in winding up, one has to consider the position of a person who claims such restitution. It is contended by Mr. Mehta for the applicants that since the claim of the applicants is an equitable claim for restitution, it must be discharged in preference to other claims. But the claims of a person who demands the return of security deposit paid by him to the company is the claim of an ordinary creditor of the company. His right to obtain such refund may be a right in equity. But, there is no provision under the Companies Act which gives such a claim any priority over the claims of other creditors. It is pointed out by Mr. S.H. Doctor, learned counsel for the official liquidator, that the amounts paid by the applicants to the company unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be impressed with a trust will have to be decided on the basis of the terms of the agreement and the facts and circumstances of each case, without leaning one way or the other on the fact that the money was given as a security deposit. When the terms of the agreement do not clearly indicate any trust, the court will have to consider the facts of the case along with the terms of the agreement to decide whether in fact, something in the nature of a trust was impressed on the security deposit. In such a case, the fact that there was no segregation provided for and the fact that interest was to be paid, would be circumstances to be taken into account. In the present case, looking to the circumstances pointed out above, there is nothing to i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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