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TMI Blog2002 (4) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that at the request of the Mahendra Mills Ltd. (now in liquidation) (hereinafter referred to as the company ), the applicant initially acquired three diesel generating sets from one Jackson Engineers Ltd. under invoices dated June 3, 1997, June 6, 1997, and June 7, 1997, and gave the said three D.G. sets on lease to the company under an agreement of lease dated June 7, 1997 (Annexure B to the application). Similarly, on November 13, 1997 and November 28, 1997, the applicant purchased two more D.G. sets which also were leased out to the company under agreement of lease dated November 28, 1997 (Annexure D to the application). From the aforesaid five D.G. sets given under lease agreement to the company, one D.G. set was returned in August, 1998. Therefore, since August, 1998, the company was in possession of four D.G. sets. It is further averred in the affidavit that the company had failed and/or neglected to pay the rent fixed under the lease agreement. Thus, the applicant is a creditor of the company in respect of outstanding lease rentals, and hence prayer to pay up the amount of the said lease rentals. 3. However, in view of the fact that the company has been taken i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the applicant-company is accepted. S.O. to 10-9-2001 17-8-2001Sd. (C.K. Buch, J)." 6. In the second report of September 19, 2001, the official liquidator has stated that a person from his office had been deputed to the registered office and factory premises of the company and on verification of records two files pertaining to the D.G. sets were found. On scrutiny of the said files various invoices and challans which were available in the files have been annexed with the report by the official liquidator. Furthermore, in the said report it is stated that : "original lease agreement is not traceable in the records of the company (in liquidation)". 7. At the time of hearing Mr. Sandeep Singhi appearing for ICICI, i.e. , respondent No. 4 raised preliminary objection that the two lease deeds were insufficiently stamped and the same should be impounded as per provision of section 33 of the Bombay Stamp Act, 1958. It was submitted that as per the Schedule, article 30 lease deed was liable to stamp duty under clause ( a )( ii ) and the duty would be the same as a Bond, viz. , article 14 of the Schedule. Inviting attention of the court to the additional affidavit fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pment under lease being Annexures A and B, the additional affidavit dated October 9, 2001, as well as letter dated January 11, 1998, issued by the company in favour of the applicant to contend that the ownership of the D.G. sets as being of the applicant stood established and that the same had been leased out to the company was also proved by these documents without reference to the lease deeds. It was, therefore, submitted that even if the preliminary objection of not admitting the lease deeds in evidence is upheld the applicant-company must be granted relief as prayed for on the basis of these undisputed documents which went to show that the applicant-company was the lessor and the lessee was the company. In the alternative, it was submitted that the applicant-company may be permitted to lift the D.G. sets after giving an undertaking to the official liquidator that the applicant-company shall pay the necessary duty and the penalty, if levied as and when called upon to do so, if the lease agreements produced on the record of this application were impounded and subsequently adjudicated upon by the authority for ascertaining the proper duty. 10. In the affidavit dated March 14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be seen the case of the applicant is primarily based on termination of the lease agreements by virtue of clause 7 which deals with various contingencies pertaining to termination. Even the aforesaid letter dated January 11, 1998, specifically goes to show that the subject was lease rentals for the D.G. sets installed under the lease agreements. Even in the body of the letter, two lease agreements have been referred to at two places as can be seen from the emphasis supplied. Therefore, if the lease deeds are kept out of consideration the evidence on which reliance was placed on behalf of the applicant would not carry the case of the applicant any further. Though the said invoices specifically show in the column : name and address of customer the applicant-company as lessor and in the column of name and address of consumer the name of the company as lessee from the said invoices it does not flow whether the lease came to an end, if yes, at what point of time, and lastly that lease rentals as submitted under the lease agreements had not been paid by the company. The two schedules of equipment under lease produced as Annexures A and B to the additional affidavit dated October 9, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the following condition : The applicant-company shall submit an undertaking to the effect that as and when the adjudication process about the correct stamp duty in relation to the two lease agreements is over and if it is found that any stamp duty and penalty is payable, the applicant-company shall make necessary payment within the stipulated period as directed by the appropriate authority without prejudice to its rights and contentions. The undertaking shall be accompanied by a bank guarantee for a sum of Rs. 15 lakhs in favour of the Registrar of this court and the said bank guarantee shall be encashed in the event the undertaking is not complied with by the applicant-company when called upon to do so. This undertaking shall be filed with the Registrar of this court and an authenticated copy shall also be filed with the official liquidator before lifting the 4 D.G. sets. The official liquidator shall permit the applicant-company to lift the 4 D.G. sets after receiving the undertaking as aforesaid. 16. In so far as the value of stamp used for entering into lease agreement is concerned, prima facie , it appears that the preliminary objection raised on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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