9911796707
TMI Blog1995 (11) TMI 471X X X X Extracts X X X X X X X X Extracts X X X X ..... ad. 2. By an order dated July 12, 1978, passed in Company Petition No. 525 of 1977, the said company was directed to be wound up and the official liquidator attached to the High Court was appointed as official liquidator of the said company. 3. Gannon Dunkerley and Co. Ltd. is applicant No. 1 in Company Application No. 261 of 1995. By letter dated March 16, 1984, addressed to the State Bank of Hyderabad, the applicant offered to purchase all the assets of the company in liquidation for a sum of ₹ 65,00,000 along with the leasehold interest of the company under liquidation in the said eight plots. The State Bank of Hyderabad approached respondent No. 1 for its consent for sale and transfer of the eight leasehold plots of land referred to hereinabove. On October 31, 1984, respondent No. 1 passed an order which is directly relevant for the purpose of deciding this application. A copy of the said order is annexed as exhibit C to the affidavit of Shri Masur Kuppuswami Nilakant Kaushik dated May 10, 1995. The said order makes reference to the above-referred eight plots of land bearing Nos. A-63 to A-67 and C-23 to C-25 situated in the Dombivili area of respondent No. 1. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r for purchase of all the assets of the company including the leasehold rights of the company under liquidation in the said eight plots of land. The official liquidator obtained the valuation report. By order dated January 30, 1985, Bharucha J. as His Lordship then was (now the Justice of the Supreme Court of India) passed an order making the judge's summons, i.e., Company Application No. 368 of 1984, absolute in terms of prayer (a) thereof. While passing the said order the learned judge observed in the said order that having regard to the valuation report it appeared to him that the judge's summons should be made absolute in terms of prayer (a). Thus, the transaction for transfer of leasehold rights in the said eight plots of land along with other assets of the company under liquidation was sanctioned by this court as a company court and the official liquidator was directed to accept the offer made by applicant No. 1. This is not a case of private transaction between the State Bank of Hyderabad and applicant No. 1 without intervention of the company court. This is a case of transfer of assets belonging to the company under liquidation during the course of winding up with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judge's summons absolute in terms of prayer (a) of the judge's summons and the official liquidator was thus directed to convey and transfer of the assets of the company under liquidation in favour of applicant No. 1 or its nominee or nominees. The State Bank of Hyderabad was claiming certain additional amounts from applicant No. 1 in lieu of interest, etc., It is recorded in the said order that applicant No. 1 had handed over a cheque for ₹ 11,27,000 to learned counsel for the State Bank of Hyderabad in court on account of interest payable. Thus, all the disputes regarding payment of consideration amount to the official liquidator in pursuance of the order passed by this court as aforesaid came to an end. 10. On December 8, 1993, applicant No. 2-company, i.e., Wintri Engineering and Chemicals Pvt. Ltd., was incorporated as a company under the Companies Act 1 of 1956. It is the case of the applicant and it is believable that applicant No. 2 is the subsidiary company of applicant No. 1 with effect from December 9, 1993. The applicants have annexed the certificate of incorporation in respect of applicant No. 2 being certificate of incorporation dated December 8, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant No. 1. 15. By judge's summons herein, i.e., Company Application No. 261 of 1995, the applicants have sought a direction from this court as company court to respondents Nos. 1 to 3 not to press for payment of premium in a sum of ₹ 65 lakhs (rupees sixty-five lakhs) and set aside the demand made by respondent No. 1, for payment of such premium by its letter dated January 6, 1995, copy whereof is exhibit A to the affidavit in support of the judge's summons. By this judge's summons the applicants have also sought a direction from this court to respondents Nos. 1 to 3 to transfer the leasehold rights in respects of the eight plots of land referred to hereinabove in favour of applicant No. 2. 16. Learned counsel for respondent No. 1 has raised several contentions at the Bar while opposing the application herein. 17. The first question which arises for consideration of the court is as to whether this court has jurisdiction to entertain the application made by the applicants herein, i.e., Company Application No. 261 of 1995. 18. Shri R. M. Bardey, an officer of respondent No. 1, has filed his affidavit dated November 17, 1995, and has formulated the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmarised in the earlier part of this order. 21. Learned counsel for respondent No. 1 has interpreted the order dated October 31, 1984, passed by the MIDC, a copy whereof is exhibit C to the affidavit in support of the judge's summons so as to convey that the said order does not exempt the applicants herein from payment of the amount of differential premium. In this respect, the questions required to be considered by the courts may be formulated as under : (a) Whether it is a case transfer of leasehold plots by applicant No. 1 in favour of applicant No. 2 ? (b) Whether it is a case of first transfer or whether it is a case of second transfer ? 22. Clause 3 of the order dated October 31, 1984, clearly provides that if Gannon Dunkerley and Co. Pvt. Ltd. decides to make further transfer of the leasehold rights in the said plot of land in favour of any other party, the second transferee will have to make a fresh application to respondent No. 1 for its consent. Applicant No. 1 is not effecting transfer of assets herein in favour of applicant No. 2. No transfer of leasehold rights is still effected in favour of applicant No. 1. In the earlier proceedings, applicant No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant No. 1 as a separate company only with a view to evade payment of the transfer fee payable in respect thereof to respondent No. 1. I have no hesitation in rejecting this submission as well. The onus of proving the alleged circumvention or alleged fraud on the part of applicant No. 1 in getting applicant No. 2 incorporated as its subsidiary is on respondent No. 1. Respondent No. 1 has failed to discharge the said onus. In my opinion it is in the interest of justice that reasonable conditions be imposed on the applicants before effective relief is granted as prayed for. 24. Learned counsel for respondent No. 1 has submitted that respondent No. 1 is not bound by the order of this court passed on July 22, 1993, inasmuch as the said order was passed behind his back. By the said order the official liquidator is directed to execute the deed of transfer including in respect of the leasehold plots in favour of applicant No. 1 or their nominee or nominees. The said order does not affect the right of respondent No. 1 to claim the amount of premium if any amount of premium is recoverable by respondent No. 1 in law before effecting the transfer of leasehold right of the company under liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is court today duly authenticated by the company Registrar. The applicants shall submit the draft of the necessary document of transfer to the official liquidator within two weeks from today; (ii) The applicants shall pay the standard transfer fee (not the amount of any premium) to respondent No. 1 at the rate of ₹ 10 per square metre, i.e., ₹ 3,27,600 by bank draft or banker's cheque along with the applicant for transfer of lease of the unexpired period of the lease executed in favour of the company under liquidation on August 13, 1973. Respondent No. 1 shall thereafter execute a document of transfer of lease in favour of applicant No. 2 for the unexpired period of the lease and get the same duly registered. Respondent No. 1 shall be so within four weeks of the receipt of the application for such transfer. The application for such transfer should be signed by both the applicants and should be accompanied by a letter from the official liquidator to the effect that all the conditions imposed by the court on the applicants are duly complied with. The application for transfer of leasehold rights in the said eight plots of land should also be accompanied by a true ..... X X X X Extracts X X X X X X X X Extracts X X X X
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