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TMI Blog2020 (2) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioners are seeking directions to the Respondents to execute the lease agreement with the petitioners in respect of the subject property. The other prayers are made for actual possession of the subject property and for striking down and cancellation of notices dated 27.8.2013 and 2.4.2015 issued by the Respondents. Vide notice dated 27.8.2013, Petitioner No.2 was called upon to pay 30% Differential Premium by adjusting the payments already made by him. The notice, thus, demanded an amount of Rs. 27,69,400/-. The notice dated 2.4.2015 again was issued by Respondent No.1 to Petitioner No.2 cancelling the original allotment order dated 13.12.2006 in respect of the subject property. 3. During pendency of this Petition, the parties entered into Minutes of Order dated 24.4.2019. This Court (Coram: A.A. Sayed & R.I. Chagla, JJ.), vide order dated 24.4.2019, had directed the parties to act in terms of said Minutes of Order. Those Minutes of Order contained thirteen clauses. Vide Clause-1, Petitioner No.1 had undertaken to deposit the aforesaid sum of Rs. 27,69,400/- with the Registrar of this Court. The amount was to be kept in the Fixed Deposit initially for a period of six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed a letter dated 6.11.2006 to the Regional Manager of Respondent No.1 requesting him to correct the name of the Company in the allotment letter to read as "Mr.Bimal Kalyandas Joukani, Partner of Lanvin Textile mill and a proposer of a Pvt. Ltd. Company". It was mentioned in the letter that they intended to convert the Company to a Private Limited Company. 7. Respondent No.4, vide order dated 13.12.2006, sanctioned allotment of the land admeasuring 9962 square meters comprising of the subject property i.e. Plot No.L-98 in Tarapur Industrial Area. The allotment order mentions that the subject property was allotted to (1) Mr. Bimal Kalyandas Joukani, (2) Mr. Prakash Kalyandas Joukani and (3) Mr. Balkishan Kalyandas Joukani, the Partners of M/s. Lanvin Textile Mills and proposed Private Limited Company, for payment of the premium of Rs. 1,39,46,800/- at the rate of Rs. 1400/- per square meter. 8. According to the Petitioners, the Respondents were paid the balance sum in respect of allotment of the subject property and they were requested vide letter dated 13.1.2007 to execute the final lease deed. 9. The letter dated 9.4.2008 issued in the name of Petitioner No.2 and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills & proposed Private Limited. 15. Petitioner No.2 complied with this letter dated 15.3.2012 and informed the Respondents about such compliance through his letter dated 15.5.2012 and requested to hand over the possession of the subject property by executing the deed in the name of Petitioner No.1. The documents in respect of formation of Petitioner No.1 Company were enclosed with this letter. The Respondents asked for a few more documents, viz, C.A. Certificates showing list of Directors etc. and certified copy of incorporation certificate dated 27.4.2012. Even these requirements were complied with by the Petitioners but neither the lease deed was executed nor possession of the subject property was handed over to the Petitioners. 16. Respondent No.4 sent a letter dated 27.8.2013 to Petitioner No.2 describing him as the Promoter of Proposed Private Limited, informing him that Respondent No.1 had decided to transfer the subject property in favour of Petitioner No.1 subject to the condition that Petitioner No.2 paid 30% Differential Premium to the Corporation. Adjusting the payment already made, the balance amount of Rs. 27,69,400/- was demanded by the Respondents from Petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to the Petitioners as per due process of law since the allottee and first transferee had failed to take steps for execution of the agreement to lease and for taking over possession of the plot. 20. It is the specific case of the Respondents that Respondent No.1 had decided to transfer the plot from first transferee to Petitioner No.1 subject to payment of 30% Differential Premium which was in accordance with its circular dated 11.12.2006. Since Respondent No.1 had recovered 10% Differential Premium at the relevant time, Respondent No.1 demanded the remaining 20% Differential Premium from the first transferee vide letter dated 27.8.2013. The stand taken by the Respondents in this affidavit is that the letter dated 30.6.2006 shows that the request for allotment was made by Petitioner No.2 on behalf of M/s. Lanvin Textile Mills and not in his individual capacity and it was only on 15.7.2008 that Petitioner No.2 had requested to transfer the plot from the allottee to Petitioner No.2 as Proposer of the Private Limited Company. 21. According to the Respondents, the requests to transfer the plot were made at different stages and the request to transfer the plot in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plot and not transferee. He, therefore, submitted that Petitioner No.2 was entitled to transfer the subject property in favour of Petitioner No.1 on payment of minimum charges and not on payment of 30% of Differential Premium. 26. Ms. Gadre, on the other hand, submitted that the plot was never allotted to Petitioner No.2 in his individual capacity as the Proposer of a Private Limited Company, which was to be formed, but, was allotted to the Partners of M/s. Lanvin Textile Mills. Petitioner No.2 was the first transferee and, therefore, the Respondents were entitled to recover 30% of Differential Premium from him. She submitted that the Petitioners had never complied with the demands made by the Respondents through their various letters. She submitted that transferring the subject property from Petitioner No.2 to Petitioner No.1, therefore, fell in the category of 'non-formal transfer' and the Respondents are entitled to recover that amount from the Petitioners. 27. We have considered all these submissions. Before discussing further, it is necessary to take into account the guidelines issued vide circular dated 12.5.1998 in respect of 'formal transfer' and 'non-formal transfer' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee/Lessee has constructed or consumed at-least 10% of the permissible F.S.I. of the plot area, such transfer will be permitted on recovery of the 10% of the differential premium. 2. Where the condition at (1) above is not fulfilled, i.e. has not constructed at least 10% of the permissible F.S.I., of the plot area such transfer will be permitted on recovery of the 30% of the differential premium. Explanation: For the purpose of the determination of the construction of at least 10% of the permissible F.S.I. of the plot area, the certificate issued by the Licensed Architect will have to be produced by the Licensee/Lessee and such certificate will be relied upon by the Corporation. In addition, certificate of the Special Planning Authority of the Area may also be obtained for cross checking THUS THE TRANSFER ARISING OF : 1. Inducting individual not being blood relations. 2. The changes in partners not being blood relations. 3. Transfer from prop. to partners of the partnership firm not to the blood relations. 4. Promotor to proposed partnership. 5. From proprietor or partnership to the private limited company / limited company. 6. From holding to subsidiary or from one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original allottee that Respondent No.1 had decided to transfer the subject property in favour of the Petitioner No.2 who was named and described as 'Promoter of the proposed Private Limited Company'. At that time, Petitioner No.2 and other partners of M/s. Lanvin Textile Mills were asked to pay Rs. 7,97,000/- towards Differential Premium besides process fee and fencing charges. This payment was promptly made by Petitioner No.2 on 3.2.2012. Hence Petitioner No.2 had complied with the demand of Differential Premium. 35. Significantly, vide further communication dated 15.3.2012 again addressing to Petitioner No.2 and other partners of M/s. Lanvin Textile Mills, the Respondents informed them that since they had paid Rs. 7,97,000/- towards Differential Premium, Respondent No.1 had considered the request and transferred the subject property in favour of Petitioner No.2, promoter of the proposed Private Limited Company. They were directed to form a Private Limited Company within 60 days from the date of the order i.e. from 15.3.2012. Thus, it is clear that the subject property was transferred in favour of Petitioner No.2. He was described as promoter of the Proposed Private Limited Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to allottee at all. It simply mentions that for transfer from promoter of the proposed Private Limited Company to Private Limited Company incorporated by the Promoter, the existing procedure for the transfer from Promoter to the Company incorporated by the Promoter would continue. Hence, the transfer of subject property to Petitioner No.1 is simply a transfer from the Promoter i.e. Petitioner No.2 to the Company incorporated by said Promoter. Therefore, this transfer would fall in the fourth category of 'formal transfers' and, therefore, the Respondents cannot claim 30% Differential Premium. 42. The reliance of Ms.Gadre on the circular dated 11.12.2006 is misplaced because that circular refers to the minimum construction which is required to be completed by the allottee. However, till 27.8.2013, though the subject property was agreed to be transferred in the name of Petitioner No.1 by the Respondents, the possession was not handed over to the Petitioners and hence there was no question of completing the minimum construction within the stipulated time mentioned in the circular dated 11.12.2006. Therefore, the only issue which was to be decided was in respect of demand of 30% Differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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