9911796707
TMI Blog2005 (9) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... court in Company Application No. 44 of 2000, to take possession of all the properties and assets, more particularly described in Schedule "A" of the report of the official liquidator dated July 12, 2001. As a consequence the liquidator was to take possession of the property described as office/shop No. 103, 1st Floor, Ganesh Plaza, Opp. Navrang-pura Bus Stand, Ahmedabad admeasuring 2256 sq.ft. approximately (hereinafter referred to as "the property in question"). When the representative of the liquidator went to take possession he was informed by the person there, one Shri Dinesh P. Shah, that he was the owner of the property in question and hence the representative of the liquidator did not take possession of the premises. It was in these circumstances that report was filed by the official liquidator seeking appropriate direction from the company court. The liquidator produced before the company court a letter of allotment dated April 10, 1997, issued by Radhe Associates (appellant No. 1) along with certificate dated April 10, 1997, issued by appellant No. 1. It is not in dispute that the building named as "Ganesh Plaza" is owned by a society known as "Himalaynagar Co-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 and his group concerns, stood transferred to one Valor Finstock P. Ltd., discharging the obligations in so far as appellant No. 2 along with other group concerns was concerned. The submission was, that as a consequence, as recorded in the agreement, title deeds were returned by PFSL and in the circumstances the official liquidator could not have staked his claim to the property in question. In support of the proposition reliance is placed on the decisions in the case of Industrial Bank of Western India Ltd., In re, AIR 1931 Bom 123 and Lala Kapurchand Godha v. Mir Nawab Himayatalikhan Azamjah, AIR 1963 SC 250, at page 254, paragraph No. 8, of the judgment. A further contention was that as already mentioned in affidavit-in reply a consent decree had been passed in the suit filed by PFSL and the appellants must be permitted to refer to and rely upon the said document in support of the case of the appellants because the said document went to the root of the matter; alternatively, it was contended that the matter be restored to the learned single judge so as to examine the said document. The submission was that on the basis of the said consent decree the appellants would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession to and possessory right of PFSL stands established ; ( viii )Even, if the contention raised by the appellants on the basis of various agreements, with special reference to agreement dated September 8, 1999, is accepted for the sake of argument, the document talks of release of securities in favour of Radhe Estate Developers, and therefore, the property in question could not have been allotted by appellant No. 1 herein to Shri D.P. Shah. In the light of the aforesaid findings of fact recorded by the learned single judge the contentions raised on behalf of the appellants may be examined. The first contention based on provisions of sections 101 and 102 of the Evidence Act does not merit acceptance for the simple reason that the genuineness of the allotment letter has never been challenged as recorded by the learned single judge. The challenge is limited to the aspect that no consideration has been received by appellant No. 1 from PFSL. Once the document in question, namely allotment letter dated April 10, 1997, records that the allotment is made in the light of full and final payment made by PFSL, the onus is on the appellants to show that the said statement is not correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof has been witnessed by anybody nor is the common seal of the company shown to have been affixed in the document, despite the fact that it is stated that the parties have put their respective hands and seals on the day and year mentioned in the document. It is not necessary to burden the record by referring to each one of the document, suffice it to state that the same position prevails in all the documents placed on record. Resolution dated September 7, 1999, of PFSL produced at page No. 87 of the paper book is subsequent in point of time, i.e., after the agreement dated July 9, 1997. Yet, the fact remains that the resolution in relation to the first agreement is not available on record and in the circumstances the subsequent proceedings cannot be taken into consideration. At the cost of repetition, it requires to be stated that the link between appellant No. 1 and other concerns, including Radhe Estate Developers, has not been established and therefore even if all these documents are accepted at their face value they cannot carry the case of the appellants any further. The plea in relation to the permission to refer to consent decree deserves to be rejected firstly, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence for substantial cause. In the case of Pari Mangaldas Girdhardas v. CIT [1977] 6 CTR 647, this court was called upon to decide as to in what circumstances Income-tax Appellate Tribunal can admit additional evidence in the light of provisions of rule 29 of the Income-tax (Appellate Tribunal) Rules, 1963. After reproducing rule 29 at page 667 of the report, it is stated by this court that since the provisions of the said rule are in pari materia with the provisions of Order 41, rule 27 of the Code of Civil Procedure, the court may refer to some of the decided cases relating to Order 41, rule 27(1)( b ) of the Code of Civil Procedure in order to appreciate the nature and ambit of the power conferred. After referring to the decision of the Privy Council in the case of Parasotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143 and the Supreme Court in the case of Arjan Singh v. Kartar Singh, AIR 1951 SC 193 and in the case of K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526, the following principles have been culled out by this court (page 668) : "48. The principles, which emerge from the decided cases are, as earlier stated, applicable even in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other substantial cause" would mean that the court may allow additional evidence to be brought on record if the court considers that in the interest of justice something which remained obscure should be filled up so that it can pronounce its order in a more satisfactory manner. Furthermore, such requirement has to be of the court and a party may point out to the court a lacuna or the defect, but cannot insist as a matter of right. In the present case, admittedly, no lacuna or defect has been pointed out in the evidence on record. The court is not required to take additional evidence so that it can pronounce the judgment in a more satisfactory manner, considering the fact that the appeal is at the stage of admission. In other words, for the purpose of deciding whether the appeal requires to be admitted or not, it is not necessary on facts to admit additional evidence. Therefore, the request made on behalf of the appellants stands rejected. The last contention raised on behalf of the appellants based on provisions of section 59 of the Transfer of Property Act need not be gone into for the simple reason that, as stated hereinbefore, all the documents of 1997 and 1999, viz., after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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