Bombay High Court
Aditya Developers Corporation And Anr vs Board Of Industrial And Financial ... on 1 September, 2021
Author: B.P. Colabawalla
Bench: B.P. Colabawalla
(16) IA(L).2293.2021.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 2293 OF 2021
IN
OFFICIAL LIQUIDATOR REPORT NO.370 OF 2016
Aditya Developers
Corporation and anr .... Applicants
In the matter between
Board of Industrial and
Financial Reconstruction ... Petitioner
v/s.
Gandhinagar Electronics Ltd.
(In Liquidation) and anr. ... Respondents
WITH
COMPANY APPLICATION NO. 12 OF 2019
IN
OFFICIAL LIQUIDATOR REPORT NO.370 OF 2016
Aditya Developers
Corporation and anr .... Applicants
In the matter between
Board of Industrial and
Financial Reconstruction ... Petitioner
v/s.
Gandhinagar Electronics Ltd.
(In Liquidation) and anr. ... Respondents
WITH
Vina Khadpe, PA Page 1 of 13
(16) IA(L).2293.2021.doc
COMPANY APPLICATION NO. 271 OF 2017
IN
COMPANY PETITION NO.1126 OF 2001
Aditya Developers
Corporation and anr .... Applicants
v/s.
Gandhinagar Electronics Ltd.
(In Liquidation) and anr. ... Respondents
Ruchir Tolat a/w Raj Adhia i/b. Vishal V. Acharya for the
Applicants.
Aseem Naphade a/w Rekha Shinde i/b. Legal Chartered for the
Respondent No.3.
Aditya Pimple for the Offcial Liquidator.
Mahendhar Aithe, Company Prosecutor is present.
CORAM : B.P. COLABAWALLA, J.
TUESDAY , 24TH AUGUST, 2021 P.C. :
1 The above application has been fled by the Applicants inter alia seeking a direction to Gujarat Industrial Development Corporation (Respondent No.3) to forthwith transfer Plot Nos.A/ 12, A/13 and A/14 situated at the Gujrat Industrial Development Corporation (GIDC)-Gandhinagar Gujarat (for short, the "suit property") in favour of the Applicants without any signature to be Vina Khadpe, PA Page 2 of 13 (16) IA(L).2293.2021.doc obtained on any kind of undertakings or any other legal document. Though this prayer is worded in such a fashion, the real grievance against GIDC is that GIDC is demanding huge amounts by way of transfer charges, water & drainage expenses and revenue charges before GIDC transfers the suit property sold by the liquidator to the Applicants. According to the Applicants, GIDC is not entitled to any amounts claimed and hence the present application. There are also other prayers in the interim application which I will deal with a little bit later. 2 To dispose of this application, it would be necessary to refer to some relevant facts. By an agreement dated 29 th August, 1983, entered into between GIDC and Cauvery Electronics Private Limited (erstwhile name of the Company in liquidation), Respondent No.3 (GIDC) agreed to allot to Cauvery Electronics Private Limited the suit property. Thereafter, a lease deed was entered into on 11th June, 1984 wherein Respondent No.3 was the Lessor and Cauvery Electronics Private Limited was the Lessee of the suit property. Thereafter, the name of Cauvery Electronics Private Limited was frst changed to Shaw Wallace Electronics Private Limited and thereafter, from Shaw Wallace Vina Khadpe, PA Page 3 of 13 (16) IA(L).2293.2021.doc Electronics Private Limited to Gandhinagar Electronics Limited (i.e. the Company in liquidation). It appears that a Company Petition came to be fled against Gandhinagar Electronics Limited (the Company in liquidation) in this Court and this Court by its order dated 20th December, 2001 wound up the Company and the Offcial Liquidator was also appointed to take over the assets and the books of accounts etc. of the said Company. Thereafter, the Offcial Liquidator took possession of the suit property and also had a valuation done for the purpose of sale of the same. Finally, pursuant to the order passed by this Court on 3 rd November, 2017 read with the order dated 2nd May 2019 the suit property was sold/transferred to the Applicants. In compliance with the order dated 2nd May, 2019, the Offcial Liquidator handed over physical possession of the suit property to the Applicants on 11 th June, 2019. On 11th September, 2019, a Deed of Assignment was executed in favour of the Applicants by the Offcial Liquidator pursuant to the order passed by this Court on 17th July, 2019. 3 It is the case of the Applicants that after completing all the formalities, it approached GIDC (Respondent No.3) to transfer the suit property in its name, being the successful bidder Vina Khadpe, PA Page 4 of 13 (16) IA(L).2293.2021.doc and purchaser of the suit property from the Offcial Liquidator. It is at this time that disputes started as GIDC refused to transfer the suit property in the name of the Applicants unless the following amounts were paid :
(a) Rs.1,14,54,885/- +18% GST being transfer charges for change of name from Cauvery Electronics Private Limited to Shaw Wallace Electronic Private Limited;
(b) Rs.1,14,54,885/- +18% GST being transfer charges for change of name from Shaw Wallace Electronic Private Limited to Gandhinagar Electronics Limited (the Company is liquidation); and
(c) Rs.1,90,91,475/- + 18% GST being transfer charges for transferring the property from Gandhinagar Electronics Limited (the Company in liquidation) to the Applicants.
4 Hence, the total amount of transfer charges claimed by GIDC was Rs.3,05,46,360/- excluding GST. Over and above Vina Khadpe, PA Page 5 of 13 (16) IA(L).2293.2021.doc this, GIDC also claimed water and drainage expenses to the tune of Rs.32,03,847/- and revenue charges in the sum of Rs.44,43,563/-.
5 It is not in dispute that the transfer charges listed in paragraph 3(a) and (b) above as well as the water & drainage expenses and the revenue charges (enumerated in paragraph 4 above) are all alleged dues of the Company in liquidation. 6 As far as the amount of Rs.1,90,91,475/- + 18% GST [mentioned in paragraph 3(c) above] is concerned, the learned advocate appearing on behalf of the Applicants stated that this amount is calculated on the basis of a circular dated 18 th February, 2017 issued by GIDC. He submitted that the Applicants will be challenging the said circular in appropriate proceedings, but until the said challenge, GIDC need not transfer the suit property in the name of the Applicants unless the amounts mentioned in paragraph 3(c), namely, Rs.1,90,91,475/- + 18% GST, is paid to GIDC.
7 Mr. Naphade, the learned advocate appearing on Vina Khadpe, PA Page 6 of 13 (16) IA(L).2293.2021.doc behalf of GIDC submitted that the transfer charges mentioned in paragraph 3(a), (b) and (c) above are all payable by the applicants. This is for the simple reason that the applicants have purchased the suit property on an "as is where is whatever there is basis" and have agreed to bear the expenses for transferring the suit property in the records of GIDC. In this regard, he relied upon Clauses 5, 6 and 9 of the Deed of Assignment dated 11 th September, 2019 executed between the Applicant and the Offcial Liquidator. Mr. Naphade submitted that the Applicant cannot be allowed to approbate and reprobate in this fashion. Having accepted the beneft under the Deed of Assignment, the Applicant cannot renege on its obligations thereunder. He, therefore, submitted that until the amounts claimed by GIDC are paid by the Applicants, there is no question of directing GIDC to transfer the suit property in the name of the Applicants.
8 I have heard the learned advocates appearing for the parties at great length. I have also perused the papers and proceedings in the above application. For the sake of convenience, I will deal with each of the claims made by GIDC separately.
Vina Khadpe, PA Page 7 of 13
(16) IA(L).2293.2021.doc 9 The frst claim made by GIDC is for the sum of Rs.1,14,54,885/- +18% GST towards transfer charges for the change of name from Cauvery Electronics Private Limited to Shaw Wallace Electronics Private Limited. It is not in dispute that this change of name took place more than 30 years back. This change of name took place some where in the year 1995. Not having ever made this claim either against Cauvery Electronics Private Limited or Shaw Wallace Electronics Private Limited, I do not think that this claim can be made today against the Applicant who is the successful purchaser/transferee of the suit property from the Offcial Liquidator. In any event, this claim would clearly be barred by the law of Limitation as held by this Court in the case of Posh Infrastructure Pvt. Ltd. vs. the Offcial Liquidator of Transpower Engineering Ltd. & anr (2020 SCC OnLine Bom 867) . This being the case, I fnd that GIDC is wholly unjustifed in refusing to transfer the suit property in the name of the Applicants for non payment of transfer charges of Rs.1,14,54,885/- +18% GST for change of name from Cauvery Electronics Private Limited to Shaw Wallace Electronics Private Limited.
Vina Khadpe, PA Page 8 of 13
(16) IA(L).2293.2021.doc 10 The next claim made by GIDC is for the sum of Rs.1,14,54,885 + 18% GST for change of name from Shaw Wallace Electronics Private Limited to Gandhinagar Electronics Limited (the Company in liquidation). Here also the change of name, though not on record, has taken place long time back and in any event prior to the year 2001, when the above Company Petition was fled. Here also, there is nothing on record to show that this claim was made either on Shaw Wallace Electronics Private Limited or Gandhinagar Electronics Limited (the Company in Liquidation). This being the case, the reasons set out by me for rejecting the claim for transfer charges in relation to the change of name from Cauvery Electronics Private Limited to Shaw Wallace Electronics Private Limited will equally apply in the present case as well.
11 As far as the water & drainage expenses (Rs.32,03,847) and revenue charges (Rs.44,43,563) are concerned, it is not in dispute that these are dues, if any, of Gandhinagar Electronics Limited (company in liquidation). This being the case, these dues cannot be recovered from the successful purchaser, namely the Applicants. In fact, to be fair Vina Khadpe, PA Page 9 of 13 (16) IA(L).2293.2021.doc Mr. Naphade, he has not even seriously pressed for these claims, as admittedly no claim in relation thereto has been fled by GIDC before the Offcial Liquidator till date.
12 This, now only leaves me to deal with the transfer charges payable by the Applicants for the transfer of the suit property from Gadhinagar Electronics Limited (the Company in liquidation) to the Applicants. This claim is made on the basis of a circular dated 18th February, 2017. This circular has been issued by GIDC and it categorically states that for sale of properties by the Offcial Liquidator/ DRT / auction/ sale, 25% transfer fees of the prevailing "distribution rate" will have to be recovered. Mr. Naphade points out that the "distribution rate" is the rate at which a property would be allotted if a fresh application is made in that regard. He submitted that it should not be mistaken as the market rate of the property but is lesser than the market rate prevailing for the said property. I have carefully gone through the aforesaid Circular dated 18 th February, 2017. This Circular, in no uncertain terms authorises GIDC to levy transfer charges / fees @ 25% of the prevailing "distribution rate" of the property sought to be sold by the Offcial Liquidator / Vina Khadpe, PA Page 10 of 13 (16) IA(L).2293.2021.doc DRT. This circular was very much in force when the suit property was purchased by the Applicants from the Offcial Liquidator. This being the case, the claim of GIDC with reference to transfer charges for transferring the suit property from Gandhinagar Electronics Limited (the Company in liquidation) to the Applicants is fully justifed. Consequently, it is directed that GIDC shall transfer the suit property in the name of the Applicants in its record on the Applicants paying the sum of Rs.1,90,91,475 + 18% GST until the aforesaid payment is made, GIDC will be under no obligation to transfer the suit property in the name of the Applicants.
13 Having said this, I shall now deal with the other prayers in the application. Prayer clause (b) of the application is to direct the Offcial Liquidator to decide and adjudicate the claims received against the Company in liquidation in a time bound manner. The Offcial Liquidator on taking instructions has stated that he would adjudicate the claims of the creditors of the Company in liquidation, but has requested for permission of this Court to appoint a Chartered Accountant to assist the Offcial Liquidator to adjudicate the aforesaid claims. It is accordingly Vina Khadpe, PA Page 11 of 13 (16) IA(L).2293.2021.doc ordered that the Offcial Liquidator shall appoint a suitable Chartered Accountant from its panel to adjudicate the claims received by the Offcial Liquidator. Once the adjudication is done, the Offcial Liquidator can seek necessary directions by fling an appropriate OLR. It is directed that this entire exercise shall be completed by the Offcial Liquidator within a period of 16 weeks from today.
14 As far as prayer clause (c) is concerned, it seeks a direction from the Offcial Liquidator to treat the Applicants as unsecured creditors of the Company in liquidation. The learned advocate appearing on behalf of the Offcial Liquidator, after taking instructions, has made a statement that they shall treat the Applicants as unsecured Creditors of the Company in liquidation. The said statement is accepted as an undertaking given to this Court.
15 In view of prayer clauses (b) and (c) being granted in favour of the Applicants, nothing survives in prayer clauses (d) and (e). This now works out the entire Application and is disposed of in the aforesaid terms. However, there shall be no Vina Khadpe, PA Page 12 of 13 (16) IA(L).2293.2021.doc order as to costs.
16 This order shall be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned shall act on production by fax or e-mail of a digitally signed copy of this order.
Digitally B.P. COLABAWALLA, J.
signed by
VINA VINA ARVIND
KHADPE
ARVIND Date:
KHADPE 2021.09.04
11:16:03
+0530
Vina Khadpe, PA Page 13 of 13