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TMI Blog2023 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to claim transfer charges, as applicable to other entities, in case of the petitioners. Only the processing fee of Rs.10,000/- can be claimed by the respondent no.1. Whether such transfer is between entities identical on point of shareholding and directorship, thus coming within the exclusion contemplated in the General Policy and minutes of meeting of the WBSIDCL itself, as annexed to the opposition of the WBSIDCL - an amalgamation of the lessee within its group companies is not considered as transfer for the purpose of charging transfer fees under the said policy of the WBSIDCL. This Court is of the opinion that the respondent no.1 acted de hors its own General Policy and meeting resolutions in claiming full transfer fees from the petitioners by treating the amalgamation between the petitioners no.1 and its companies as a transfer within the contemplation of the General Policy of the respondent no.1, although it falls within the exception clause thereof. Petition allowed. - The Hon ble Justice Sabyasachi Bhattacharyya For the Petitioners : Mr. Krishnaraj Thaker, Adv., Mr. Raghunath Ghose, Adv., Ms. S. Santra, Adv., Ms. Pritha Ghose, Adv. For the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioners. According to the petitioners, the respondent no.2 made further enquiries about the Constitution of the Companies which were parties to the amalgamation Scheme in the said meeting. Further documents were also submitted by the petitioners as per the discussion in the said meeting. 9. However, vide letter dated February 2, 2021, the respondent no.2 asked the petitioners to pay Rs.18,76,000/- with 18% on account of GST, treating the petitioners application as one for transfer of lease to a third party. 10. On the query of the petitioners as to the reason of such claim, the respondent no.2 cited the opinion of senior counsel , which was never furnished to the petitioners. 11. Learned counsel for the petitioners argues that as per the relevant clause of the lease deeds, if the leasehold interest is transferred to group companies, where the identity of the transferor and transferee is same, it would not be treated as transfer and only a service charge of Rs.10,000/- is payable. However, if the lease is transferred to a new entity, full transfer fees are chargeable in terms of the schedule prescribed by respondent no.2. 12. Such provisions find place in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted at (2015) 12 SCC 501, relied on by the respondents, the Supreme Court has recorded a finding on fact that the transferor and transferee companies had no common shareholders or directors. It is argued by the petitioners that the said circumstances are not applicable to the present case, as the petitioner no.1 and the amalgamated companies are group companies and the shareholding structure and Board of Directors of the companies are identical. 19. In fact, it is argued that the provision for obtaining prior approval has been expressly waived by the positive and overt acts and conduct of the respondents in seeking particulars of shareholding structure and Board of Directors of the petitioner no. 1 and Sona Promoters by its letter dated October 5, 2020 and in the meeting dated December 8, 2020, both of which were after receipt of the petitioners application for mutation. 20. Learned counsel for the petitioners argues that the amalgamation scheme was entered during the pendency of the appeal before the Supreme Court. Seeking approval from the respondent no.2 prior to entering into the scheme of amalgamation at that juncture would be idle and empty formality as the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the lessee must not change its identity or character without prior consent of the Corporation. By reason of the amalgamation, the lessee has merged into the petitioner no.1, losing its identity and existence. 27. Such transfer by way of amalgamation was without the consent of the lessor. Therefore, it is argued, the respondent no.1 never had any relationship of lessor and lessee with the transferee company/petitioner no.1, which is, thus, an unauthorized occupant of the premises. 28. The demand of the respondents from the petitioners for transfer charges was an offer to regularize the tenancy/lease, which was turned down by the petitioner no.1 on the ground that it is under the same management and beneficiary as the lessee. 29. It is argued that the general policy for transfer of lease is based on a public policy as contained in Section 108(j) of the Transfer of Property Act, 1882. Where there is a contract to the contrary as in this case, the lessee does not have the authority to deal with the leasehold interest. At the point of time when the lessee dealt with the lessor s property, it did not have the authority to do so. Thus, the transfer of lease was wholly un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation made to the lessor by the lessee. 36. Clause (iv) under the same contemplates merger, arrangement and amalgamation of the lessee with its group company. 37. In the present case, the petitioner amalgamated with its group companies, thus otherwise falling within the exceptions which would not be considered transfer. However, it is noteworthy that even as per the recording in the said agenda, for the non-consideration as transfer, the lessee would have to make a prior intimation to the lessor and the lessor would decide the same upon examination of such application of prior intimation. 38. Under the General Policy for transfer of lease, adopted by the WBSIDCL, the WBSIDCL allows transfer of lease subject to obtaining prior approval in writing. Thus, the transfer of lease contemplated therein has to be preceded by prior approval in writing. 39. It is reiterated thereafter that the transferor and transferee shall make an application in the prescribed form of WBSIDCL for seeking such prior approval for the transfer upon payment of Rs.10,000/- as application/processing fees. Prior to giving approval, the lessor is to ascertain that there are no outstanding dues to the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exception clause carved out of transfer as per the General Policy of the respondent no.1 itself. 47. Thus, the respondent no.1 is not entitled to claim transfer charges, as applicable to other entities, in case of the petitioners. Only the processing fee of Rs.10,000/- can be claimed by the respondent no.1. 48. Considering the judgments cited by the respondents, in Maan Concast Pvt. Ltd. (supra) the coordinate Bench of this Court was considering schemes of amalgamation generally. The stress therein was on change in identity of the lessee. The court observed that the transfer and vesting of the rights of the lessee in respect of the deed of lease is not binding on the first respondent as the lessor. It was further observed that it is open to the first respondent to demand a consideration for recognizing an entity as its lessee, in the given facts of the said case. In the said case, there was no mitigating circumstance of the entities which were amalgamated; hence, the said general proposition is distinguishable from the present case. 49. In the Division Bench judgment of Allenby Garments (supra), the court stressed the fact that the two entities which were amalgamated w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners as a regular transfer, in contravention of the exception curved out in the General Policy of the respondent no.1. 54. There has been a mix-up regarding the other aspect of the matter. The petitioners claim that the transfer by amalgamation in the petitioners favour is to be formalized by the respondents by accepting such transfer and mutating the same. 55. However, the respondents have sought to place reliance on the relevant clauses in the lease-deeds between the respondent no.1 and the predecessor-in-interest of the petitioner, that is, Sona Promoters Pvt. Ltd. for arguing that in the event of subletting without prior approval of the lessor, the lessor is entitled to eviction. 56. The respondents have a strong case there, insofar as the lease-deeds contemplate prior approval before subletting. 57. However, the said proposition is also arguable, since amalgamation between group companies having same shareholding and directorship may not tantamount to transfer in favour of a third party. However, the same depends on the facts and circumstances of the case, which can only be gone into in a proper proceeding, if instituted by the respondents for eviction. 58. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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