Madras High Court
The Prayer Made In This Company ... vs The Official Liquidator on 22 June, 2011
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.06.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA Comp.A.No.3227 of 2007 in C.P.No.130 of 1999 ORDER
The prayer made in this company application is to direct the respondent no.2, i.e. The President, Akriti Flat Owners Association, to provide pathway right to the applicant's land in S.No.131/18 at Sembakkam Village, Kanchipuram.
2. The applicant being the highest bidder, his bid for purchase of land in S.No.131/18 at Sembakkam Village, Kanchipuram District, was accepted. The applicant paid the entire sale consideration of Rs.6,50,000/- (Rupees Six Lakhs Fifty Thousand only) and the sale deed also stands executed in favour of the applicant and his wife Mrs.Mini Mathew vide Doc. No.7895/05.
3. The applicant, thereafter, filed C.A.No.3227 of 2003, seeking a direction to the respondent no.2 to provide pathway to the applicant's land in S.No.131/18 at Sembakkam Village, Kanchipuram District, as previously the land purchased by the applicant and that of respondent formed one unit.
4. This Court, on 06.03.2008, passed the following orders on the application made:
"This application has been filed seeking for a direction to the second respondent to provide pathway right to the applicant's land in S.No.131/18 at Sembakkam Village, Kanchipuram District.
2. The case of the applicant is that an offer made by the applicant to purchase the lands in S.No.131/18 was accepted by this court as the highest bid and the sale was confirmed in his favour by order dated 3.3.2005. Subsequently the applicant had paid the entire sale consideration of Rs.6,50,000/-. The sale deed was also executed in favour of the applicant and applicant's wife Mrs.Mini Mathew jointly and the sale deed was registered as document No.7895/05 in the office of the Sun Registrar, Tambaram. Since there was no road to approach the main road from the land purchased by the applicant, he has been making representations to the Official Liquidator. It is learnt that the land was purchased by the erstwhile company with an intention to promote flats along with the 2nd respondent Association. Now the second respondent has constructed a company wall and as such there is no approach way to the property of the applicant. Hence he has filed this application for the above said relief. Notice was sent to the second respondent on the direction of this Court. Two notices dated 27.12.2007 and 31.1.2008 sent by registered post with acknowledgement due, have been served on the second respondent and an affidavit of service has been filed to prove the services on the second respondent. In spite of notices, none appeared on behalf of the second respondent. Even today when their name is printed in the cause list, there was no representation on behalf of the second respondent. In view of the fact that the construction has been put up by the second respondent on the lands purchased from the company in liquidation, it has become necessary for this Court to issue a direction to the second respondent to give pathway to facilitate the applicant to have easy access from his lands purchased by him to the main road.
3. Therefore the second respondent, the President, Akriti Flat Owners Association and its members are directed to give pathway on the western side to the applicant to have easy access from the land purchased by him in S.No.131/18, Sembakkam Village, Kancheepuram District to the main road.
4. With the above direction, this application is disposed of."
5. On an application made by the respondent no.2, exparte order was recalled.
6. It is not disputed that the land was sold to the applicant in Court auction. The applicant is entitled to right of pathway on the principle of "easement of necessity".
7. The defence taken by the learned counsel for the respondents is that the land was sold on "as is where is basis". This cannot be the ground to deny the pathway to the applicant, as previously both the lands formed one unit.
8. This Court tried for amicable settlement. Having failed in the attempt of amicable settlement, the learned Advocate of this Court was appointed as Local Commissioner to inspect the site and prepare site plan, depicting the area from where the path, could be provided to the applicant, out of the land belonging to the second respondent.
9. In pursuance to the order passed by this Court, on 11.04.2011, the Advocate Commissioner visited the spot, and filed his report along with site plan. As per the site plan, path can be provided to the land of the applicant either on the western side of the flats or on the eastern side. The site plan shows that in case of the pathway on the western side, a septic tank will come in the way. Whereas path can be provided on the eastern side.
10. The value of the property was got assessed. The report further shows that there is already a path on the eastern and western side for use of flat owners, therefore, path on the eastern side can be extended to the plot of the applicant, subject to payment of price of the land, so as to settle equities between the parties.
11. Learned counsel for the respondents has opposed the application;
firstly on the ground that it was for the applicant to verify before purchase, that there was no path to the land purchased by him.
Secondly, the land was sold on as is where is basis, therefore, the applicant cannot claim pathway on the property of the respondents.
12. The objection deserves to be noticed to be rejected, as under the principle of "easement of necessity", a party can always claim path from the private property of owner, when the area was one unit before purchase by different parties. This is what is prayed for, by the applicant.
13. Learned counsel for the respondents vehemently contended, that this Court has no jurisdiction to entertain the present application, as remedy, if any, with the applicant is to file Civil Suit, to claim "easement of necessity". This Court has no jurisdiction under Rule 9 of the Company Court Rules to pass any order, after the sale has been confirmed, and the petition disposed off.
14. In support of this contention, the learned counsel for the respondents placed reliance on the judgment of the Hon'ble Division Bench of this Court in the case of M/s.TCI Distribution Centres Ltd vs. The Official Liquidator, in 2009 (4) L.W.681.
15. However, this judgment does not support the contention raised. The Hon'ble Division Bench of this Court was pleased to lay down that this Court has to exercise its inherent powers conferred under Rule 9 of the Companies (Court) Rules, 1959. The Hon'ble Division Bench, in exercise of powers under Section 9 of the Companies (Court) Rules, 1959, had set aside the auction sale, by the Official Liquidator, though subsequently, confirmed by this Court. The direction was also issued to the Official Liquidator to return the sale consideration.
16. Learned counsel for the respondents, thereafter, placed reliance on the judgment of this Court in the case of Shanita Holdings SDN, BHD, Malaysia and another vs. Shanita Hotel Trichy Pvt. Limited and another, in 2009 (2) CTC 210, wherein, this Court was pleased to lay down, that where no specific remedy is provided under Companies Act, the proper remedy is the civil suit, as exclusion of civil Court jurisdiction is not to be readily inferred, as exclusion must either explicit or clearly imply.
17. On consideration, I find that this judgment is also of no help to the respondents, as in the said case, the question for determination was with regard to civil Court jurisdiction, regarding matters not covered under the Companies Act. The Court was not considering as to whether in order to effectively implement the auction sale by the Company Court, "can the provisions of Rule 9 of the Company Court Rules, 1959, be invoked or not". This judgment, therefore, cannot be said to lay down that the Company Court would have no jurisdiction to order providing of path to the applicant, even though there is no path to the property sold in auction. If the contention of the learned counsel for the respondents is accepted, then the person buying the property in Court auction would not be able to use it for want of access to the property. This would neither be equitable nor permissible in law.
18. Consequently, this company application is allowed. The respondent no.2 is directed to provide pathway to the applicant on the eastern side of the flat, subject to payment of price of the land, which would fall under the path. It is made clear that it will not be open to the applicant to stop usage of path by the members of Akriti Flat Owners for approaching their flats.
19. The applicant shall also be liable to pay the market value, assessed as Rs.48,00,000/- (Rupees Forty Eight Lakhs only), of the land to the respondent no.2, for benefit of the association, for use and providing of path. No costs.
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