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TMI Blog2003 (4) TMI 462X X X X Extracts X X X X X X X X Extracts X X X X ..... ery is situated or is reasonably believed by the applicant to be situated; ( iii )That the Official Liquidator attached to this Hon ble High Court and in charge of all assets of M/s. Aryan Finefab Limited, be directed to pay to the applicant all costs, charges and expenses incurred by the applicant for retaking or repossession of the machineries/equipments described in para 7 of the present application. 2. The facts giving rise to the present application are that the applicant herein is a public limited company and the opponent-company (in liquidation) had approached the applicant for obtaining finance for the purchase of plant and machinery required for manufacture of certain goods. The applicant acceded to the request of the opponent-company and decided to provide machinery and/or equipments on hire purchase basis on the terms and conditions specified in that regard. Accordingly, an agreement of hire purchase was executed between the applicant and the opponent-company on 21-7-1993 and an amount of Rs. 63,00,000 was sanctioned by the applicant to the opponent-company under hire purchase facility. A second agreement of hire purchase was also executed between the parties on 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -1998 and 28-7-1998 by cheque of Rs. 1,00,000 each drawn on Punjab National Bank. Thereafter, the opponent-company has not paid any amount and, therefore, the applicant-company was constrained to approach this Court by filing Company Petition No. 198 of 1998 for winding up of the opponent-company. 2.5 The applicant-company had also filed Special Civil Suit No. 299 of 1999 against the opponent-company in the Court of Civil Judge (S.D.), Mahesana for repossession of the equipments and/or machineries leased to the opponent-company and also for restraining the opponent-company, its Directors, agents and servants from transferring, alienating, encumbering, parting with the possession, or dealing in any manner whatsoever the hired equipments and/or machineries lying at the factory premises of the opponent-company on Plot No. 1559/1/A, Vill. Raipur, Tal. Kadi, Distt. Mahesana. 2.6 On 24-4-2001, this Court passed an order for winding up of the opponent-company in Company Petition No. 198 of 1998 and a batch of other Company Petitions and Company Applications filed against the opponent-company. 2.7 On 29-1-2002, Special Civil Suit No. 299 of 1999 instituted by the applicant-comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the winding-up order. 3.1 Mr. Buch in the alternative submitted that the agreement which is sought to be relied upon was not an agreement for "hire purchase" but was in fact a "lease" agreement, and that being so, the said agreement cannot be looked into as the documents are not executed on proper stamp fee, under the Bombay Stamp Act, 1958. Learned advocate submitted that the agreement being that of lease, the same was required to be executed on a stamp paper as provided in Entry No. 30 of Schedule I of the said Act. The document is executed on insufficient stamp paper, the same cannot be looked into and no relief can be granted to the applicant relying on that document. 3.2 Mr. Buch invited the attention of this Court to various paragraphs of the present application and also of the judgment of the learned Civil Judge (S.D.) Mahesana in Special Civil Suit No. 299 of 1999 wherein the words/phrases "leased", "finance facility" and the "leased property" are used indiscriminately. 3.3 Mr. Buch, learned advocate also relied upon the two Division Bench decisions of this Court in the matter between Virji Lavji Makwana v. Rainbow Screen Shades 1979 (20) GLR 352 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the machineries has not vested in the opponent-company, as the opponent-company has not paid all the instalments of hire purchase and the amounts due and payable under the provisions of the agreement. That being so, the answer to the question as to whether on the date of the order of winding up, the equipments/machineries though lying in the premises of the opponent-company, belonged or not to the opponent-company is in negative because on the reading of various clauses of the document, it is clear that the property did not pass to the opponent-company and, therefore, the equipments and machineries though lying in the premises of the opponent-company, did not belong to the opponent-company. 6. The contention that the decree was passed after the date of winding up does not warrant any consideration for the simple reason that the applicant-company is not required to base its claim on the decree. However, the same can be taken note of for finding an additional support to the claim of the applicant-company as even a Civil Court while considering the question in detail has come to the conclusion that the document was of "hire purchase" and that the ownership did not pass on to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Until the equipment shall have become the property of the Hirer under the provisions of this Agreement it shall remain the absolute property of the Owner and the Hirer shall have no right or interest in the same other than under this agreement." "9.2-1 The Owner shall, without any notice, be entitled to remove and repossess the equipment and for that purpose by itself, its servants or agents enter upon any land, buildings or premises where the equipment is situated or is reasonably believed by the Owner to be situated shall not be responsible for any damage which may be caused by any such detachment or removal of the equipment." There is not even an iota of doubt in the mind of this Court that the document is of hire purchase agreement. 9. The contention raised by Mr. Buch regarding the decree being nullity on the ground of Mahesana Court having no jurisdiction, does not warrant a detailed consideration in light of the fact that the applicant herein has based its right/s on the documents of hire purchase, which as discussed hereinabove, are executed on required stamp fee. This question has lost its significance because no reliance is placed on the decree passed by the Civi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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