9911796707
TMI Blog2020 (8) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter referred to as the Company in Liquidation). The Form No.23 was filed with the Registrar of Companies in that regard. After construing Section 456(1) of the Companies Act, 1956, this Court held that power of Company Court is vast. The leasehold rights of the company are an asset of the company which is capable of sale through the process of liquidation. The Official Liquidator has power to take possession even MIDC property given on lease and to sell the subsisting leasehold rights during the the Court of winding up. Under Section 457(1)(c) of the Companies Act, 1956, the Official Liquidator in winding up by the Court shall have power with the sanction of Court to sell the immovable property by public auction or private contract with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels. This Court is of the view that the issue as to whether MIDC is entitled to recover any premium on the transfer of the property sold by sanction of the Company Court in respect of assets of the company in liquidation is an issue incidental and arise in the course of the winding up of the company and thus, can be tried by the Company Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dder pursuant to an order passed by the Company Court would not be a voluntary transfer but would be an involuntary transfer and would attract the payment of standard transfer charges only. It is not in dispute that this Court has already permitted the execution of the deed of assignment in favour of the Applicant in respect of said leasehold right as a nominee of the successful bidder. The Applicant has already paid the entire consideration amount to the Official Liquidator and is already put in physical possession thereof. The Official Liquidator has also settled the claims of various creditors or has distributed dividend out of the said sale proceeds. Whether MIDC can raise demand for payment of extension charges for allegedly not carrying out development of the said plot by Transpower Corporation or thereafter by Transpower Engineering Pvt. Ltd. within the time prescribed or not? - HELD THAT:- The Applicant itself seeks direction against Respondent No.2 to extend the time for completing a building by two years from the date of transfer in the plot No.B-16 in the name of Applicant. The Applicant is thus liable to pay such extension charges as contemplated in various circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panvel Dist. Raigad admeasuring 4050 sq. meters in the name of the applicant being the purchaser of the said property and payment on standard transfer charges and also seeks an order and direction to extend the time for building completion by two years from the date of transfer of the said plot in the name of the applicant and for other reliefs. Some of the relevant facts for the purpose of deciding this Company Application are as under :- 2. On 28th January, 1978 under a Partnership Deed, the firm namely M/s. Transpower Corporation was constituted. On 7th March, 1980 vide an agreement executed between MIDC and the said M/s. Transpower Corporation, the said Plot bearing No. B-16 situated within Taloja Industrial Area of MIDC, Taluka Panvel, Raigad District (hereinafter referred to as the said plot ) was allotted to M/s. Transpower Corporation on the terms and conditions set out therein. On 7th March, 1980, the MIDC handed over the possession of the said plot to the said M/s. Transpower Corporation. On 4th May, 1980, the said M/s. Transpower Corporation was converted into a private limited company in the name Transpower Engineering Private Limited . 3. On 31st December, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a sale notice in two newspapers on 21st July, 2012 for inviting the bids in respect of the said plot. M/s. Attar Buildcon Pvt. Ltd. submitted a bid for ₹ 5,50,00,000/- to the official liquidator. 7. This Court by order dated 9th August, 2012 accepted the said offer made by the said M/s. Attar Buildcon Pvt. Ltd. in the sum of ₹ 5,50,00,000/-. This Court directed the official liquidator to execute the necessary documents in favour of the said M/s. Attar Buildcon Pvt. Ltd. and/ or their nominees and handover the said property to M/s. Attar Buildcon Pvt. Ltd. The said M/s. Attar Buildcon Pvt. Ltd. deposited the entire payment of ₹ 5,50,00,000/- towards the sale price with the official liquidator. The official liquidator handed over the possession of the said plot of land along with factory building to the said M/s. Attar Buildcon Pvt. Ltd. on 28th August, 2012. 8. On 6th February, 2014, the official liquidator executed Deed of Assignment which was duly registered in favour of the applicant on the said plot being the nominee of M/s. Attar Buildcon Pvt. Ltd. The applicant addressed a letter to official liquidator on 24th March, 2015, seeking issuance of an NOC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 6th September, 2016 extended the time limit for building completion certificate from 1st September, 2015 to 31st August, 2017. The applicant thus filed this Company Application on 31st August, 2018 for various reliefs. 12. Mr. Kamat, learned counsel for the applicant invited my attention to various documents annexed to various affidavits filed by the parties and also relied upon various judgments during the course of his argument. He also invited my attention to the contentions raised by the respondent no.2 MIDC in the affidavit in reply and also the additional affidavit in reply filed by the respondent no.2 in this application and in the affidavit in reply filed by the Official Liquidator in this application. It is submitted by the learned counsel that on 10th October, 1979, the respondent no.2 had allotted a plot no. B-16 to Transpower Corporation. The possession of the said plot was handed over to Transpower Corporation on 7th March, 1980. The order of allotment was issued by the Area Manager of respondent no.2. He also relied upon the possession receipt dated 7th March, 1980 issued by the respondent no.2 in respect of plot no.B-16. 13. It is submitted by the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o how and when the plot no.16 became the property of the company in liquidation and how the said property was sold to the applicant. He invited my attention to the letter dated 8th November, 1991 addressed by the respondent no.2 to the Transpower Engineering Private Limited (predecessor of the company in liquidation) informing that it had taken note in the name of the Transpower Engineering Private Limited carrying on business as the proprietor under the name and style of M/s. Transpower Corporation. He submits that it is thus clear that in the record of the respondent no.2, the company now in liquidation was the owner/proprietor of Transpower Corporation. 17. Learned counsel for the applicant also invited my attention to the letter dated 29th January, 1992 addressed to the company in liquidation by the respondent no.2 informing that it had noted the change in the name of the company in liquidation from Transpower Engineering Private Limited to Transpower Engineering Limited. He submits that it is thus clear that as far back as in 1992, the company in liquidation was the lessee of the amalgamated plot in the records of the respondent no.2. Learned counsel also placed reliance on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm to the company in liquidation is concerned, learned counsel for the applicant submits that applicant is not liable to pay any such premium to the respondent no.2. He submits that the basis of such demand made by the respondent no.2 is that the respondent no.2 did not have in its records the name of the company in liquidation as the allottee/lessee of the said plot. It is the case of the MIDC that there is a transfer from the partnership firm to the company in liquidation attracting differential premium. It is submitted that on amalgamation of these four plots, there became one plot. He relied upon the document at page 135 of the further affidavit and would submit that it is clear that the amalgamation of the plot was sanctioned by the respondent no.2 subject to the conditions mentioned therein. He also relied upon page 136 of the further affidavit and would submit that it is also clear that the MIDC had granted approval on 23rd February, 1981. He also relied upon the document at page 132 and would submit that the said document would also clearly indicate that all four plots were treated as one plot in the plan. 21. It is submitted by the learned counsel that the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competent court thus shall be permitted on payment of standard transfer charges and not differential premium as demanded by the MIDC. 24. It s submitted by the learned counsel that the sale conducted by the Official Liquidator pursuant to an order passed by the Company Court cannot be compared with the sale conducted in BIFR proceedings. In BIFR proceedings, endeavours are made to restructure a company. The Official Liquidator on the other hand is an official appointed to liquidate the assets of the company in liquidation so as to pay and distribute the same amongst the creditors in accordance with law. Such transfers effected pursuant to a Company Court are compulsory in nature and are not done voluntarily. 25. Learned counsel for the applicant submits that even otherwise the said circular dated 12th December, 2011 issued by the MIDC clearly indicates that the sale conducted by the Official Liquidator cannot be treated as a sale between a willing buyer and a willing seller. It was a compulsory act where the Company Court was disposing off the assets by selling the same. Such a sale is a formal sale or an involuntary sale which does not attract payment of differential premium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the General Development Control Regulations of CIDCO where in addition to an occupation certificate, a building completion certificate was mandatory. He submits that the entire purpose under which the said respondent no.2 was incorporated was to ensure that the plot allotted by the respondent no.2 was not kept idle and that an industry is established and kept running. He submits that since in this case the building was constructed on the amalgamated plot and occupation certificate was granted, the construction on the amalgamated plot was complete and the permission by CIDCO, the then planning authority to occupy and carry on the business from the said structure was permitted by issuance of occupation certificate. 29. It is submitted by the learned counsel that unless it is shown that CIDCO separately issues building completing certificate after further compliance as required under their General Development Control Regulations, the respondent no.2 cannot claim its entitlement for extension charges. He submits that without prejudice to the said submission, respondent no.2 at the highest can lodge its claim with the Official Liquidator and claim such extension charges in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deeds were fully satisfied. Learned counsel for the applicant placed reliance on the judgment of Supreme Court in case of Smt.Rajbir Kaur and Another vs. M/s. S.Chokesiri and Company (1989) 2 SCC 19 and in particular paragraphs 19 to 22, 24 to 26, 28 and 32 to 34 in support of the submission that merely because an agreement has a clause that no tenancy is to be created will not itself preclude the instrument from creating a lease. The court has to see intention of parties and the surrounding circumstances including the conduct. 32. Learned counsel for the applicant placed reliance on the judgment of Delhi High Court in case of Municipal Corporation of Delhi vs. Pradip Oil Corporation and Another, 100(2002) Delhi Law Times 442 (Full Bench) and in particular paragraphs 37, 38, 40 to 44 and 50 in support of the submission that the substance of the document must be preferred to the form. The real test is the intention of the parties i.e. as to whether they intended to create a lease or a licence. If the document creates an interest in the property, it is a lease but if only permits another to use of the property, or which the legal possession continues with the owner, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declared the dividend to the workers in the sum of ₹ 7,02,53,995/- so far. This court has also condoned delay of five workers in filing their claim with the Official Liquidator. The Official Liquidator has admitted claims in respect of two of the workers in the sum of ₹ 5,30,542/- and ₹ 5,40,350/- out of those five additional claims so far. It is submitted that pursuant to the request made by the respondent no.2, the Official Liquidator has provided various documents to the respondent no.2. He submits that pursuant to the order dated 9th August, 2012 passed by this Court in Official Liquidator s Report No.261 of 2012, the Official Liquidator has already sold the said plot bearing no.B-16 to M/s. Attar Buildcorn Private Limited for ₹ 5,50,00,000/- who has nominated M/s.Posh Infrastructure Private Limited, the applicant herein. 36. It is submitted that the Official Liquidator has already executed a sale deed dated 7th February,2014 in respect of the said plot bearing no.B-16 in favour of M/s.Posh Infrastructure Private Limited. He submits that the Transpower Corporation, a partnership firm was converted into M/s.Transpower Engineering Private Limited and wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, the official liquidator addressed a letter to all concerned informing them that possession of the said plot bearing no. B-16 would be taken on 29th January, 2011 and accordingly took possession thereof on the said date fixed in the said letter. It is submitted that respondent no.2 has already recognized the company in liquidation as its lessee in the respect of the said plot bearing no. B-16. The applicant had addressed a letter on 24th March, 2015 to the official liquidator seeking issuance of an NOC in respect of the water dues for the said plot. 39. It is submitted that the official liquidator found in its record a water bill issued by MIDC dated 11th March, 2015 in the name of Transpower Engineering Private Limited for an amount of ₹ 4,78,508/-. The meter status for the said plot shows as disconnected. He submits that the respondent no.2 thus has already noted the change of constitution of the partnership firm into a private limited company. The local authority otherwise would not have issued a water bill in the name of the Transpower Engineering Private Limited. He submits that the said order dated 19th August, 2012 thus passed by this Court thereby directing the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidental to a transfer but would amount to a statutory vesting of properties in the company as per the provisions of the Companies Act, 1956. From 4th May, 1980 the said firm stood replaced by the cloak of a private limited company i.e. Transpower Engineering Private Limited and from 27th September, 1991, the private limited company was converted into a limited company being the company in liquidation. 42. Learned counsel for the official liquidator placed reliance on the judgment of this Court in case of Commissioner of Income Tax, Mumbai v/ s. Texspin Engineering and Manufacturing Works, Mumbai, 2003 (5) Mah. Gen. 507 in which this Court had dealt with an issue in respect of levy of capital gain tax under Section 45(1) and 45(4) of the Income Tax Act, viza-viz its applicability to a conversion under Part IX of the Companies Act, 1956. He relied upon paragraphs 5 and 6 of the said judgment and would submit that once there is a vesting of asset from a firm to a private limited company and where the constitution of the firm itself had not changed, the properties are considered to be vested in the company, as they exist. This ipso facto does not amount to a transfer of asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submission that no such differential premium is liable to be paid. He submits that the respondent no.2 now seeks to levy transfer charges with retrospective effect from the year 1980 on the basis of the said circular. He submits that under the old guidelines, such transfers were considered as formal transfers. The respondent no.2 was fully aware about the change in the constitution of the firm to that of the private limited company. The MIDC had provided the said water bill to the applicant when the applicant had requested for an NOC in respect of the water dues for the said property in the month of March 2015. It is thus clear that the MIDC had verified its record and thereafter had issued the water bill. 46. Learned counsel for the official liquidator placed reliance on the judgment of Supreme Court in case of Andhra Pradesh Power Coordination Committee v/s. Lanco Kindapalli Power Limited and Ors., (2016) 3 SCC 468 in the context of the dues to be recovered by statutory authorities. It is held by the Supreme Court in the said judgment that the test to be applied in absence of a period of limitation for recovery prescribed under the statue is whether the claims, if legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he records of the respondent no.2, there is only an agreement to lease dated 17th March, 1980 in favour of the Transpower Corporation, a partnership firm who had been described as a licencee in the said agreement to lease. He relied upon clauses 1, 2, 3(a), 3(d), 3(l) and 5 to 8 of the said document. 50. It is submitted that the said agreement clearly provided that onlyafter the construction of the factory building within the specified time and obtaining building completion certificate from Executive Engineer of respondent no.2, a lease for 95 years would be executed. He submits that the extension of benefit of concession/waiver/restriction on transfer charges as well as extension charges in respect of the said plot can not be granted to the auction purchaser of the plot in possession of the company in liquidation who was only a licencee of the said plot. He submits that the applicant had no transferable interest in the said plot and such concession would not be just and legal, as it would deprive the respondent no.2 of the funds which would have been utilized for creating/augmenting industrial infrastructure in the State of Maharashtra. He submits that if the prayers in the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon regulation 1(c), 4.4, 4.5, 6, 13 and 18 thereof in support of his submission. He submits that the said regulations applied to all the lands transferred to or placed at the disposal of the MIDC by the State Government and lands purchased or otherwise acquired or held by the MIDC. He relied upon the definitions of the building completion certificate and building regulations and submits that the MIDC is empowered to dispose of the plots of land by public auction or by entertaining individual applications. The said plots can be allotted on rental basis or on premium lease basis or partly on rental basis and partly on premium basis. The plot in question had been allotted on the basis of the application received from the partners of the erstwhile Transpower Corporation. 54. It is submitted by the learned counsel that only after payment of premium or security deposit as the case may be, the allottee shall execute an agreement to lease in Form C provided in the said regulations in accordance with regulation 13. He submits that under regulation 18, on production of Building Completion Certificate the allottee shall be entitled to execution of a lease in their favour in Form D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement to lease dated 7th March, 1980 was only a licence as contemplated under regulation 13 of the MIDC Disposal of Land Regulations, 1975 and since the said Transpower Corporation did not construct a factory building on the said plot bearing no.B-16 and did not submit any building completion certificate, no lease contemplated under clauses 7 and 8 read with regulation 18 was executed. The said Transpower Corporation continued to be the licencee of plot no.B-16. 57. It is submitted that the company in liquidation was in possession of plot no.B-16 only as a licencee as the said company joined the said Transpower Corporation as a partner. He submits that the said plot thus could have never become the property of the company in liquidation and thus the Official Liquidator could not have auctioned the said licence in respect of plot no.B-16. In support of his submission that such an agreement to lease can never be termed as lease, he relied upon the judgment of Supreme Court in case of ICICI vs. State of Maharashtra (1999) 5 SCC 708 and in particular paragraphs 1 to 4, 6 and 8. He also placed reliance on the judgment of this court in case of State of Maharashtra vs. Jasubhai Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Financial Corporation in respect of the loan would not convert the agreement to lease entered into in accordance with regulation 13 unless there is compliance of regulation 18 read with clauses 7 and 8 of the said agreement to lease and a separate lease has been executed. He distinguished the judgment of Supreme Court in case of Smt.Rajbir Kaur and Another (supra) and judgment of Delhi High Court in case of Municipal Corporation of Delhi (supra) relied upon by the learned counsel for the applicant and would submit that none of these judgments would assist the case of the applicant for the aforesaid reasons. 61. Learned counsel for the respondent no.2 submits that the company in liquidation in this case was incorporated on 4th May, 1980. He relied upon the provisions of the Memorandum of Association of the company in liquidation and would submit that the main object of company was to enter into partnership in the business carried out by the firm Transpower Corporation. There is thus no conversion of partnership firm into company as sought to be canvassed by the Official Liquidator in the affidavit in reply filed by him. He submits that in another proceeding of the said company in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no question of any building completion certificate and consequently lease in respect of the said plot which continued to be a licence in the hands of the company in liquidation. 64. Learned counsel for the respondent no.2 placed reliance on the judgment of the Supreme Court in case of M/s.Parasram Harnand Rao vs. M/s.Shantiprasad Narinder Kumar Jain and Another, (1980) 3 SCC 565 and in particular paragraphs 2 and 6. He submits that the Official Liquidator merely steps into the shoes of the company in liquidation and thus sale by the Official Liquidator under the orders of court is on behalf of the company in liquidation. Such a sale by the Official Liquidator thus would be a voluntary sale. He submits that in this case only an agreement to lease dated 7th March, 1980 between the MIDC and the partners of Transpower Corporation was executed. The said agreement was purely a licence with a provision for execution of lease deed in future upon completion of the factory building within the stipulated time and after submitting the building completion certificate issued by the Executive Engineer of MIDC in accordance with provisions of MIDC Disposal of Land Regulations, 1975. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute between the creditors as to who had better right over the property which was sold to the auction purchaser. There is was no dispute about the title or the nature of the property raised by the owner of the said property. 68. Insofar as the reliance placed by the applicant on the letter dated 8th August, 1980 from MIDC allegedly sanctioning the amalgamation of plot nos. B-25, B-26, B-27 and B-16 is concerned, it is submitted by the learned counsel that the said sanction letter dated 8th August, 180 itself had imposed two conditions i.e. 1) that this permission is exclusively for the purpose of construction of factory building and 2) that for all other purposes including payment of annual rent all the plots will be treated as separate one. He submits that the said sanction letter was only for construction purpose and for all other purpose the plots are treated as separate including the nature of document namely lease or licence. He submits that at the relevant time in respect of plot no. B-16, there was only a licence to enter upon the plot and to construct a factory building. 69. The sanctioning of plans by communication dated 23rd February, 1981 would also not alter the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the MIDC. Under the said provision, the MIDC may lease, sale, exchange or otherwise transfer any property held by it on such conditions as it may deem proper. He also placed reliance on Section 64 of the MID Act and would submit that the regulations framed by MIDC by exercising powers under Section 64 i.e. MIDC Disposal of Land Regulations, 1975 are statutory in nature and deal with the terms and conditions for disposal of lands. He relied upon Regulation 29 and would submit that in exercise of the said power under Section 15A read with Regulation 29, the MIDC has issued various circulars from time to time taking into consideration the requirement of industrial areas, the policy of State Government and the aims and object of the MIDC i.e. for securing the orderly establishment in industrial areas and industrial estates of industries in the State of Maharashtra and to assist generally in the organisation thereof. 72. It is submitted that the MIDC has issued 5 circulars which deal with transfer charges as well as extension charges, dated 12th May, 1998, 14th August, 1998, 12th December, 2011, 10th June, 2013 and 29th April, 2014. He submits that in this case the agreement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to pay extension charges as required under clause 4(b)(ii) of the agreement to lease dated 7th March, 1980. The official liquidator ought to have obtained the extension by paying extension charges before conducting an auction on the said plot. The payment of extension charges is thus binding on the official liquidator and the applicant. Extension of time for development of the plot is possible only upon actual payment either by the liquidator or by the applicant which is pre-requisite for getting extension. The applicant or the official liquidator cannot ask the MIDC to waive off the extension charges when the applicant as well as the official liquidator are merely licencees having no better title in the property except as provided in the agreement to lease dated 7th March, 1980. 75. It is submitted by the learned counsel that merely because official liquidator has been appointed of the assets of the company in liquidation, it cannot be a fetter on the liability to pay extension charges under the agreement to lease as failure to pay the extension charges brings the agreement to lease to an end. The liquidator or the applicant cannot request this Court to re-write the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurrent list. The provisions of MID Act and Regulations framed under the said Act would thus prevail and the agreement to lease dated 7th March, 1980 can only be converted to lease in accordance with the provisions of MIDC Disposal of Land Regulations, 1975. Learned counsel submits that the Company Applicant thus filed by the applicant deserves to be dismissed with exemplary cost. 79. Mr. Kamat, learned counsel for the applicant in rejoinder reiterated the submissions made by him in his initial arguments. He distinguished the judgment of Supreme Court in case of Shri Ramtanu Co-operative Housing Society Limited (supra) relied upon Mr. Chawan, learned counsel for the respondent no.2 on the ground that the said judgment was dealing with the challenge to the constitutional validity of the MID Act. The principle applied in this case was doctrine of pith and substance. It was nobody s case that the legislature whilst enacting MID Act has trenched upon a different entry in the concurrent list. He submits that in any event, the presidential assent under Article 254 of the Constitution of India, is of no assistance as it has no application qua the Companies Act, 1956 which is in list I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licencee in the said judgment only for the purpose of erecting the building for housing of the officers and no other purpose until grant of the lease. 83. Learned counsel also relied upon paragraph 8 of the said judgment and would submit that the possession and control of the property in the facts of that case was that of the owner. In the present case, the exclusive possession was of the company in liquidation. MIDC had permitted amalgamation of the plot. The other three plots bearing nos. B-25, B-26 and B-27 were leasehold plots in respect of which lease deeds were already executed. No landlord would permit amalgamation of a licenced plot with the leased plot. MIDC had also permitted creation of mortgage of the plot no. B-16 admittedly which would also show that the intention was to treat the agreement of lease as a lease itself and not the licence. The said judgment is thus clearly distinguishable in the facts of this case. 84. Learned counsel for the applicant distinguished the judgment of this Court in case of State of Maharashtra vs. Jasubhai Business Services Private Limited (supra) relied upon by the learned counsel for the respondent no.2 on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicates that on 28th January 1978 Transpower Corporation, a Partnership Firm was constituted. On 7th March, 1980 a plot bearing No.B-16 was allotted by MIDC vide agreement executed between MIDC and said Transpower Corporation. On 7th March, 1982 MIDC handed over possession of the said plot to the said Transpower Corporation. On 04th May, 1980, Transpower Corporation was converted into Private Limited Company under the name of Transpower Engineering Pvt. Ltd. On 27th November, 1991, the said Transpower Engineering was converted into a Limited Company which company came to be wound up subsequently (hereinafter referred to as the Company in Liquidation). The Form No.23 was filed with the Registrar of Companies in that regard. 89. It is not in dispute that M/s. Metal Tubes and Rolling Mills had filed a Company Petition against the said company seeking winding up of the said company in the year 1998. The said company was ordered to be wound up by this Court by an order dated 22nd January, 2008. On 29th January, 2011, the Official Liquidator took possession of the said Plot bearing No.B-16. The Official Liquidator was informed about the said plot by some of the workers of the said com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he powers under Section 446 bestowed on this Court are so wide that the Court has power to decide any other question whatsoever , whether of law or fact which may relate to or arise in course of the winding up of the company . The expression any other question whatsoever as well as the expression which may relate to or arise in the course of winding of the company are words of wide import, clothes the company Court with the power to decide any question whatsoever that may arise whether of law or fact, which may relate to or arise in course of the winding up of the company. It is held that the power as given under Section 446(2)(1)(d) therefore could include the power to grant a declaration as prayed for in the said Official Liquidator Report. 95. After construing Section 456(1) of the Companies Act, 1956, this Court held that power of Company Court is vast. The leasehold rights of the company are an asset of the company which is capable of sale through the process of liquidation. The Official Liquidator has power to take possession even MIDC property given on lease and to sell the subsisting leasehold rights during the the Court of winding up. Under Section 457(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter on this issue. 98. This Court shall now decide the issue whether the MIDC is entitled to recover the differential premium in respect of the said property sold pursuant an order passed by the Company Court for the first transfer of the partnership firm i.e. M/s. Transpower Corporation in favour of the Company in Liquidation as claimed or otherwise, the differential premium for the second transfer i.e. from company in liquidation to the applicant as demanded during the course of the argument or is entitled to recover only standard transfer charges or not? Learned Counsel for the applicant, for the Official Liquidator and for MIDC made several submissions on this issue before this Court and relied upon whether provisions of the Companies Act, 1956, MID Act and various regulations framed by MIDC under the said MID Act and also various judgments delivered by the Supreme Court and this Court in support of their rival contentions. 99. It was vehemently contended by Mr. Chawan, learned counsel for the MIDC that according to the records of MIDC, there is an agreement of lease dated 17th March, 1980 in favour of the M/s. Transpower Corporation, a partnership firm who had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) the rent stipulated by way of consideration for the grant. 102. Delhi High Court in case of Municipal Corporation of Delhi (supra) has held that (a) to ascertain whether a document creates a licencee or lease, the substance of the document must be preferred to the form, (b) that real test is the intention of the parties whether they intended to create a lease or a licence, (c) if the document creates an interest in the property, it is a lease but if only permits another to use of the property, of which the legal possession continues with the owner, it is a licence (d) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant, but the circumstances may be established which negative the intention to create a lease. 103. The lender who was mortgagee in respect of the said plot also construed the said mortgage transaction by accepting the leasehold rights of the said Transpower Corporation in the said plot as and by way of security. This Court also while granting permission to sell the rights of the Company in Liquidation by order dated 21st June, 2012 also considered the rights in favour of the company in liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates that the said letter was addressed to the said M/s. Transpower Engineering Pvt. Ltd. informing that the MIDC had taken a note about the change in the name of Transpower Engineering Pvt. Ltd. There is no substance in the submission of learned Counsel for the MIDC that MIDC was not aware of conversion of said Transpower Corporation in Transpower Engineering Pvt. Ltd. and thereafter by the Transpower Engineering Pvt. Ltd. to Transpower Engineering Limited. 106. On perusal of the letter dated 29th January, 1992 annexed at page 151 of the pleadings, it is clear that on the basis of fresh incorporation certificate, the MIDC had noted the change in its records, in name of Transpower Engineering Ltd. MIDC informed that further correspondence would be in the name of Transpower Engineering Limited. Though both these letters had not referred to Plot No.B-16, MIDC did not dispute before this Court that plot No.B-16 was amalgamated with plot Nos.B-25, B-26 and B-27. Be that as it may, the factum of change in the name of M/s. Transpower Engineering Pvt. Ltd. to M/s. Transpower Engineering Limited on the basis of fresh Certificate of incorporation is not disputed by the MIDC. The amalgama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be applied by the Courts thus is that whether such dues if any, could be recovered in a Civil Court in the recovery proceeding or any other proceedings or not. Mr. Chawan, learned Counsel for the MIDC did not deal with this crucial aspect of the issue of limitation raised by the learned Counsel for the Official Liquidator. 110. Insofar as the recovery of differential premium from the first transfer is concerned, more than 40 years have been passed from the date of conversion of the firm i.e. Transpower Corporation into M/s. Transpower Engineering Pvt. Ltd. and more than 29 years from the date of conversion from the Transpower Engineering Pvt. Ltd. to the Transpower Engineering Ltd. The respondent No.2 was fully aware of such transfer at least more than 40 years from the date of conversion of partnership into the Private Limited Company i.e. in the year 1980 and for more than 29 years from the conversion of Private Limited Company into a Limited Company in 1981. The claim if any, of the MIDC for differential premium on the first transfer is thus ex-facie, barred by law of limitation. 111. There is no dispute about the proposition of law raised by Mr. Chawan learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter had challenged a demand notice issued by MIDC. MIDC was refusing to accept the building completion certificate issued by Area Manager of MIDC and that MIDC was illegally demanding penal rent for water charges. The Division Bench of this Court in the said Judgment was not dealing with the case where the occupation certificate was issued and the penal charges were levied because building completion certificate was not obtained. The said Judgment of this Court in the case M/s. Emtex Industries (India) Ltd. Anr. (supra) would thus not assist the case of the MIDC and is clearly distinguishable in the facts of this case. 114. Insofar as the Judgment in the case of ICICI (supra) relied upon by the learned Counsel for the MIDC is concerned, the Supreme Court was dealing with the definition of lease under the provision of Bombay Stamp Act. In the said Judgment the definition of lease was considered in the context of Stamp Act for the purpose of collection of stamp duty. The Supreme Court accordingly held that the Collector has to look at the nomenclature of the document without getting into the intention of the parties and the conduct of the parties. In this case the possession of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned counsel for the MIDC strongly placed reliance on communication dated 8th August, 1988 and Occupancy Certificate dated 27th August, 1981 granted by CIDCO and would submit that in the said communication dated 8th August, 1988 about amalgamation, it was clearly clarified that the said amalgamation was only for the purpose of construction of factory building and all other purposes of the plots would be treated as separate. The said Occupancy Certificate was only in respect of Plot B-25, B-26 and B-27 by CIDCO. Learned Counsel vehemently contended that on the basis of building completion certificate issued by Executive Engineer of MIDC, the MIDC has executed a lease deed dated 20th December, 1979 in respect of Plot Nos. B-25, B-26 B-27. No such lease deed was executed in respect of plot No. B-16 by MIDC either in favour of Transpower Corporation or Transpower Engineering Pvt. Ltd. or in the name of Transpower Engineering Ltd. This Court is of the view that since the interest in the said plot was already created by MIDC in favour of M/s. Transpower Corporation by agreement dated 7th March, 1980 execution of lease deed was merely the ministerial act required to be carried out in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent dated 26th July, 1980 also construed various circulars issued by MIDC permitting the MIDC to demand differential premium and other charges whilst disposing of the plots of MIDC in favour of third party. This Court also considered the right of MIDC to recover premium from the transfer on certain categories of transfer under circulars dated 12th May, 1998 and 12th December, 2011. This Court adverted to an unreported Judgment of Division Bench of this Court in the case of M/s. Colour Tech Coating (I) Ltd. Vs. Maharashtra Industrial Development Corporation Ors. in Writ Petition No. 2288 of 2014 delivered on 4th February, 2015 on the issue whether the transfer of the land which was subject matter of the said proceeding was a voluntary transfer or was an involuntary transfer. The said Judgment of Division Bench was pressed in service by the learned Counsel for the MIDC in support of his contention that the transfer in question in the matter was involuntary and thus the MIDC was entitled to collect 30% differential premium for the transfer. 120. A learned Single Judge of this Court in the said Judgment dated 26th July, 1980 in Official Liquidator s Report No. 466 of 2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the leasehold rights in the said plot in the name of M/s. Transpower Engineering Pvt. Ltd. by M/s. Transpower Corporation in whose favour the initial agreement was entered into by virtue of the said M/s. Transpower Engineering Pvt. Ltd. taking over M/s. Transpower Corporation as its proprietor being already barred by law of limitation, no recovery can be made by MIDC in respect of first transfer towards differential premium or under any other head. 123. A Division Bench of this Court in an unreported Judgment in the case of Tarapur Industries Pvt. Ltd. Anr. Vs. Maharashtra Industrial Development Corporation Ors. delivered on 5th February, 2020 in Writ Petition No. 4191 of 2015 considered the situation where promoter of the proposed private company had proposed to transfer the land to a private limited company. The MIDC had demanded 30% differential premium on such transfer to the promoter of the private limited company who was the original lessee. This Court construed Clause 5 of the Circular dated 12th May, 1998 and held that the transfer by a promoter of a private limited company in favour of private limited company would simply be a transfer from the promoter of a com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of transfer of leasehold rights in favour of Transpower Engineering Ltd. 126. This court is of the view that such transfer of the leasehold rights of the company in liquidation in favour of the successful bidder pursuant to an order passed by the Company Court would not be a voluntary transfer but would be an involuntary transfer and would attract the payment of standard transfer charges only. It is not in dispute that this Court has already permitted the execution of the deed of assignment in favour of the Applicant in respect of said leasehold right as a nominee of the successful bidder. The Applicant has already paid the entire consideration amount to the Official Liquidator and is already put in physical possession thereof. The Official Liquidator has also settled the claims of various creditors or has distributed dividend out of the said sale proceeds. 127. Next question arises for consideration of this Court is whether MIDC can raise demand for payment of extension charges for allegedly not carrying out development of the said plot by Transpower Corporation or thereafter by Transpower Engineering Pvt. Ltd. within the time prescribed or not. In this regard learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator insofar as the claim of extension charges. This Court accordingly directed the Official Liquidator to consider the payment of extension charges while adjudicating the affidavit of proof of debt and decide the quantum of extension charges, if any, payable and for that period whether up to the date of winding up or any earlier period or it is continuing. 130. MIDC is therefore at liberty to file its affidavit of proof of debt for claiming quantum of extension charges as well as for payment of standard transfer charges for transfer of leasehold rights by the company in liquidation in favour of the successful bidder/its nominee as it deems fit with the Official Liquidator within four weeks from today. The Official Liquidator shall decide such claim for payment of extension charges and standard transfer charges in accordance with law and on its own merit including issue of limitation, if any. The observations made by this Court in this Judgment in respect of payment of extension charges are prima facie. If there is any delay on the part of MIDC in filing affidavit of proof of debt for claiming extension charges or standard transfer charges till date or till the date of making su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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