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TMI Blog2008 (11) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... Estates, Thiruvanmiyur, Chennai-41 measuring an extent of 0.75 Acres to M/s. Sears Electronics Limited. 2. The dispute revolves on the following facts: By way of an order of allotment No. 41179/EL3/87, dated 29.09.1987, a shed No. Type II 39, in Dr. Vikram Sarabhai Instronics Estate, Chennai, was allotted to SIPCOT and thereafter, the allotment was transferred to M/s. Sears Electronics Limited at a tentative cost of ₹ 3,21,375/- As the final cost was not fixed, the title continued to vest in the Department of Industries and Commerce. Since the company did not pay a sum of ₹ 2,05,806/- even towards tentative cost, in terms of para - 8 of the terms and conditions of the allotment, a show cause notice was issued to Mr. A.K. Bhattacharya, the Managing Director and Mr. P.N. Kumar, the Director of the company. In spite of such notice, the company defaulted payment and therefore, by exercising the conditions under para - 9 of the terms and conditions of the agreement, action was taken to cancel the hire purchase agreement. 3. In the mean time, the company entered into a joint venture agreement with M/s. Electronics Corporation of Tamil Nadu, Government of Tamil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same Company by a separate allotment order dated 09.10.1985. Aggrieved by the said Order, the present appeal is directed at the instance of the Director of Industries and Commerce. 6. The facts leading to the allotment dated 09.10.1985 are as follows: A vacant land measuring an extent of 0.75 Acres in Plot No. 2, in Dr. Vikram Sarabai Instronics Estates, Chennai was originally allotted to M/s. Happy House (TV) Manufacturing Division, Madras by fixing a tentative cost of ₹ 60,000/- per acre vide allotment order No. 190532/EE1/84-2, dated 09.10.1985. Thereafter, the name of the company was changed to M/s.Sears Electronics Limited on 02.02.1987. Initially the company had paid the tentative cost amounting to ₹ 22,500/-. There is no dispute that thereafter the company has paid the entire tentative cost of ₹ 60,000/-. However, neither regular allotment order was made nor the sale deed was executed, as the department had not finalised the final cost. In the mean time, the company went into Liquidation and winding up order was passed by the Company Court on 26.11.1993. 7. In the above circumstances, the appellant had approached this Court questioning the Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries (SIE-2) Department, dated 17.04.1995. By that order, the Government, while accepting the conversion of rental basis to hire purchase basis in respect of sheds, it directed the payment of the final cost of the land with a notional increase of 10% p.a. in respective category A and B areas from the actual date of transfer. The Government order was passed keeping the repeated requests of the lessees, who were in occupation of the sheds on rental basis to sell the sheds on hire purchase agreement basis. This order was questioned before this Court in W.P. Nos. 17253 of 1997 and 2856 of 1997 and as such the department was under impression that it should wait for the out come of the writ petitions. Therefore, the department had not finalised the final cost. The above writ petitions came to be allowed on 14.03.2001 holding that fixing of notional price is arbitrary. The above said judgment was taken on appeal in W.A. No. 1042 and 1043 of 2001 and the same were dismissed on 18.01.2002. Only under the above said circumstances, the final cost was not arrived and as the company in the mean time, went into liquidation on 26.11.1993, the sale deed could not be executed in favour of the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched the Court only in respect of the shed, by virtue of Rule 9 of the Companies (Court) Rules, the Company Court, in exercise of equitable jurisdiction would be justified in ordering the sale of the land which was allotted in a separate allotment order. The Court is empowered to mould the relief to render justice to the parties. 11. The respective submissions are carefully considered. From the rival contentions, it is apparent that there is a serious dispute, as to the entitlement of the company to seek for execution of sale deed, in respect of the vacant land in an extent of 0.75 Acres allotted by way of a separate order dated 09.10.1985. It is true that the company court would certainly entitled to pass orders in the interest of company in a winding up jurisdiction , as it is dealing with equitable jurisdiction. However, the question is, as to whether the Company Court would be justified to deal with an issue and pass orders thereon, by moulding the prayer, when the applicant himself has not approached the Court seeking for any such relief. In this regard, the affidavit of Mr. P.N. Kumar, filed in support of the application in C.A. No. 1327of 2005 is referable. Except stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er plot, the counter affidavit bears the said particulars and therefore, the company court is justified in going through the counter affidavit and decide the issue. 12. We have carefully perused the counter affidavit filed by the Director of Industries and Commerce. As the issue of allotment of shed has come before this Court, only to put forth all the materials before the Court, without there being any suppression, the Director of Industries and Commerce has proceeded to make averments in the counter affidavit in respect of both the allotments made in favour of the company. Merely because the details as to the allotments are furnished in the counter affidavit that would not certainly give a cause either for the company to seek for the relief or the Company Court to order sale of the plot, which is not the subject matter in the application. 13. In this context, we may also usefully refer the relevant provisions of Rule 6 and 9 of The Companies (Court) Rules, 1959. Rule 6 of the Rules, reads as under: Rule 6. Practice and Procedure of the court and Provisions of the Code to apply. - Save as provided by the Act or by these rules the practice and procedure of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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