9911796707
TMI Blog2009 (8) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... 172 AND 582 OF 2008 - - - Dated:- 6-8-2009 - JAYANT PATEL, J. A.S. Vakil for the Applicant. R.M. Desai for the Respondent. ORDER 1. Company Application No. 172 of 2008 has been preferred by the Official Liquidator for seeking recovery of the mesne profit at the rate of Rs. 30 per sq.ft for the office premise and at the rate of Rs. 10 per sq.ft for parking space per month from 1-9-1999 till 29-5-2007 from the respondent No. 1 therein who was claiming to be the tenant of the property and also from respondent No. 2 who is claiming the rights as under MoU. 2. Company Application No. 582 of 2008 has been preferred by the applicant who is respondent No. 2 in Company Application No. 172 of 2008 for declaration that the transaction between applicant and the company in liquidation as per the Memorandum of Understanding (hereinafter referred to as "MoU") dated 1-9-1999 is not void against the Liquidator and it is prayed to declare the said transaction as valid within the meaning of sections 531 and 531A of the Companies Act, 1956 (hereinafter referred to as "the Act"). 3. Heard Mr. Vakil, learned counsel for Ms. Shefali Doshi - applicant, Mr. Roshan Desai for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Fully Convertible Debentures of the company in liquidation for Rs. 5,75,000 with interest Rs. 2,42,000, total Rs. 8,17,000 was to be paid by the company in liquidation, the said premises of the offices were transferred by way of transferring the right for disposal of the property in favour of the applicant. (D)There is no material on record to show that pursuant to the MoU, a conveyance deed was executed in favour of the applicant of Company Application No. 582/2008 conferring title in favour of the applicant. (E)It appears that the title clearance certificate came to be issued by one Solicitor at the instance of the applicant. (F)It also appears that there is recital in the MoU for entrustment of the possession of the Office Premises Nos. 102 to 107 by parties to MoU, namely, company in liquidation as well as Devland Developer as a confirming party. (G)The pertinent aspect is that the applicant in the present application nowhere has made any pleading or statement on oath that the actual physical possession came to be entrusted pursuant to the MoU and since then the applicant remained in possession of the said premises. (H)It appears that the company in liquida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the office premises Nos. 102 to 107. (L)On 13-4-2007, a representation was made by the so-called tenant Decimal Systems Pvt. Ltd., that they are in actual occupation of the Office Premises No. 107 only and the Court found that it was nothing but a fraud and, therefore, directed to hand over the possession of Premises No. 107 to Official Liquidator on or before 19-4-2007 which has been handed over by Decimal Systems Pvt. Ltd. to Official Liquidator. The Court also recorded that the Decimal Systems Pvt. Ltd., is not in possession of Office Premises Nos. 102 to 106. (M)Thereafter Jayantibhai Somabhai Patel had preferred application No. 224/07 before this Court for protecting his right, which this Court vide order dated 8-5-2007 did not accept the application and ultimately granted three weeks time to Jayantibhai Somabhai Patel to hand over the possession on or before 29-5-2007. It appears that thereafter the possession was handed over. (N)This Court vide order dated 10-5-2007 in Company Application No. 117 of 2007 also directed the so-called tenant Decimal Systems Pvt. Ltd., and Jayantibhai Somabhai Patel to pay mesne profit at the rate of Rs. 5 per sq.ft., for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes up for consideration before this Court. 8. The first aspect for which the emphasis is made by learned counsel Mr. Vakil is that right of disposal or the charge created as per the decree without there being any registration of such charge under the Transfer of Property Act cannot be termed as the assets of the company. 9. Even if it is considered the same would result into permitting the applicant to blow hot and cold at the same time. The rights of the applicant if any as per the MoU flows from the decree of the civil court in Civil Suit No. 2138/98 for which the reference is also made in the MoU in the beginning itself. Therefore, if the company in liquidation had not acquired any rights for disposal of the property, pursuant to the decree, the applicant, consequently, would also not get any rights whatsoever. The attempt made by the learned counsel for the applicant to contend that the owner of the property was also party to the MoU, can hardly be of any help to the applicant in supporting the acquisition of the rights. The obvious reason is that there was no debt recoverable by the applicant from the owners of the property or the developer of the property but it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e actual physical possession was also handed over to the company in liquidation and based on the same the company in liquidation had entered into the Memorandum of Understanding with the applicant for which the validation is sought in the present application. Therefore, when the consent decree is already acted upon prior to the winding up of the company, it is not possible to accept the contention of the learned counsel for the applicant that the right for disposal in the premises acquired by the company was not an asset of the company. Hence, the said contention is rejected with the finding that the right for disposal of the premises acquired by the company was an asset of the company. 12. The aforesaid takes me to examine the second aspect for validation of the transaction under section 531 of the Act. Section 531 of the Act for ready reference reads as under : "531. (1) Any transfer of property, movable or immovable, delivery of goods, payment, execution or other act relating to property made, taken or done by or against a company within six months before the commencement of its winding up which, had it been made, taken or done by or against an individual within three mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs whose payment had become due and additionally the order was also passed by the Company Law Board to honour the obligation to make the payment. 14. Further, in the MoU itself it has been mentioned that only few debentures had become due on the date when MoU was entered into and not the debentures which were otherwise to become due in April and August 2000. The date of MoU is 1-9-1999. Whereas, the debentures of Rs. 1,25,000 were to become due after the said date. In spite of the fact that the debenture had not become due, the same is considered for making set off of payment in the MoU in favour of the applicant. The aforesaid is an additional ground showing that an intended preference is made in favour of the applicant by the Directors of the company in liquidation to the extent of tendering payment by set off though had not become due. 15. Further, it has also been stated that the agreement of MoU is made in presence of Shri D.D. Mehta, who himself remained as President of the company in liquidation for a long time and just few days before the MoU, it is stated that he had ceased to be the President of the company in liquidation. 16. The aforesaid totality of the cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of the premises was handed over pursuant to MoU when a specific query was raised during the course of the hearing of Company Application No. 582 of 2008 and the present application. Mr. Vakil, learned counsel for the applicant, has not been able to make any clear statement as to whether actual physical possession of the premises was handed over or not. But, he only stated that the possession must have been given because unless the possession was given, the applicant could not have sold the premises to Shri Jayantibhai. However, he was unable to make a positive and clear statement that as per MoU whether possession was handed over or not. 22. In this regard, the perusal of the MoU shows that there is no reference to the actual physical possession entrusted by the company in liquidation to the applicant. It only refers to the understanding arrived at between the parties to the MoU. Had the actual physical possession handed over by the company in liquidation to the applicant of Company Application No. 582 of 2008, the company in liquidation would not have entered into the transaction of rent note in favour of Decimal Systems Pvt. Ltd. for all the Office Nos. 102 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons for Company Application No. 582 of 2008, this Court has also recorded that MOU has not been acted upon by entrustment of the possession to the applicant in view of the aforesaid factum of entering into the rent note with Decimal Systems Pvt. Ltd. and the pleadings in the suit proceedings. Therefore, under these circumstances, if the company remained in possession of the office premises, may be that it might have given on rented basis to Decimal Systems Pvt. Ltd., the applicant had no possession of the property as per MoU nor such possession was entrusted by the company in liquidation in furtherance to MoU. Therefore, when the possession was not with the applicant, the claim made by the Official Liquidator for mesne profit against the applicant cannot be granted. So far as Decimal Systems Pvt. Ltd. is concerned, as such the rights, were as of the tenant and the landlord, as per the rent agreement. If a strict view is taken it may not attract the amount exceeding the agreed amount of rent. However, it appears that during the course of the earlier proceedings, Decimal Systems Pvt. Ltd. has not resisted the said aspect but restricted its possession only for office No. 107 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
