Kerala High Court
M/S.Marymatha Infrastructure Private ... vs Kerala Water Authority on 20 February, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941
WP(C).No.3002 OF 2020(A)
PETITIONER:
M/S.MARYMATHA INFRASTRUCTURE PRIVATE LIMITED
(FORMERLY MARYMATHA CONSTRUCTION COMPANY)
MARYMATHA SQUARE, ARAKKUZHA ROAD,
MUVATTUPUZHA, ERNAKULAM-686661,
REP. BY ITS MANAGING DIRECTOR SABU CHERIAN
BY ADV. SRI.P.SHANES METHAR
RESPONDENTS:
1 KERALA WATER AUTHORITY
JALABHAVAN, VELLAYAMBALAM,
THIRUVANANTHAPURAM-695010
REP. BY IS MANAGING DIRECTOR
2 THE SUPERINTENDING ENGINEER
O/O.THE SUPERINTENDING ENGINEER,
KERALA WATER AUTHORITY
PH CIRCLE, KOCHI-682011
SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.3002 OF 2020
2
JUDGMENT
This writ petition is filed by a company, which now stands registered under Chapter XXI, Part I of the Companies Act, 2013 (for short 'the Act'). It is submitted that the company was initially registered as a partnership firm under the name 'Marymatha Construction Company'. By Ext.P1, a modification deed was entered into and it was proposed to seek registration of the partnership firm as a company under Section 366 of the Act. The conversion was permitted by the competent authority and the company was registered under Section 366 of the Act by Ext.P3 proceedings. It is submitted that Ext.P5 Certificate of Incorporation was also issued to the company on 16.07.2019 and the Articles of Association were registered.
2. It is submitted that Ext.P7 tender notice was issued in respect of a work to which the petitioner had submitted a bid and Ext.P8 selection notice had been issued on 13.01.2020. However, on the ground that the firm had been registered as a company in the interregnum, Ext.P10 proceedings were issued to the petitioner requiring the petitioner to execute an agreement pursuant to Ext.P8 in the name of M/s.Marymatha Constuction Company.
WP(C).No.3002 OF 2020 3
3. The learned counsel for the petitioner submits that the compliance with Ext.P10 is an impossibility, since Marymatha Construction Company stands converted and registered as 'Marymatha Infrastructure Private Ltd.' by Ext.P6. It is further submitted that the action of the respondents in requiring the petitioner to execute the agreement in the name of the partnership firm is completely misconceived and is without noticing the provisions of Chapter XXI of the Act.
4. Relying on the provisions of Sections 366, 368 & 369 of the Act, the learned counsel for the petitioner submits that the registration of a partnership firm as a company under Part I of Chapter XXI of the Act results in all the property of the erstwhile firm vesting in the company so registered without any requirement of any further conveyance. It is stated that the conversion being by operation of law under Sections 368 and 369 of the Act, the insistence that the petitioner should enter into the agreement in the name of the erstwhile firm is completely unwarranted. It is submitted that all property and privileges of the firm including the licence issued by the Kerala Water Authority vests absolutely in the newly registered company and that the contentions raised are without merits.
5. The learned Standing Counsel appearing for the Kerala WP(C).No.3002 OF 2020 4 Water Authority would contend that, even if Section 368 of the Act provides for the vesting of all property, rights and claims in the company, the licence which has been issued to the firm is not property, which would stand so transferred and that as such, the petitioner would have to make a fresh application for licence or for conversion of the licence to the name of the company.
6. The learned counsel for the petitioner submits that, such an application has already been made before the Superintending Engineer, PH Circle, Muvattupuzha, who was the authority who had granted the licence.
7. It is submitted by the learned Standing Counsel that the issue can be resolved by directing the competent authority to consider the petitioner's request for conversion of the licence to the name of the company.
8. The learned counsel for the petitioner relies on a communication issued by the Superintending Engineer of the Muvattupuzha Project Circle, Irrigation Department of the Government to contend that the licence issued by the said authority already stands transferred in the name of M/s.Marymatha Infrastructures Private Ltd.
9. The learned Standing Counsel submits that the said conversion shall also be taken note of by the appropriate authority while WP(C).No.3002 OF 2020 5 considering the petitioner's claim for conversion.
10. Having regard to the facts and circumstances of the case, this writ petition is disposed of with the following directions:
The request made by the petitioner before the licensing authority, that is, the Superintending Engineer, PH Circle, Muvattupuzha of the Kerala Water Authority will be duly considered by that authority within a period of ten days from the date of receipt of a copy of this judgment. The provisions of Sections 366, 368 & 369 of the Act as well as the conversion effected by the Superintending Engineer, Irrigation Department, Project Circle, Muvattupuzha shall also be taken note of while considering the application. The time period for execution of the agreement shall extended by two weeks from the date of receipt of a copy of this judgment.
Sd/-
ANU SIVARAMAN JUDGE np WP(C).No.3002 OF 2020 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MODIFICATION DEED DATED 12.06.2019 OF PARTNERSHIP FIRM MARYMATHA CONSTRUCTION COMPANY EXHIBIT P2 TRUE COPY OF THE FORM NO.URC-1 (APPLICATION UNDER SECTION 366 SUBMITTED BY THE PARTNERSHIP FIRM MARYMATHA CONSTRUCTION COMPANY) EXHIBIT P3 TRUE COPY OF THE FORM NO.INC 32 EXHIBIT P4 TRUE COPY OF THE REPLY DATED 28.05.2019 FROM THE DEPUTY REGISTRAR OF COMPANIES, CENTRAL REGISTRATION CENTER MINISTRY OF CORPORATE AFFAIRS GURGAON, HARYANA EXHIBIT P5 TRUE COPY OF THE CERTIFICATE OF INCORPORATION DATED 16.07.2019 EXHIBIT P6 TRUE COPY OF THE MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION OF THE PETITIONER EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE E-TENDER NO.12/2018-19/SE/PHC/CHN(RE- TENDER) DATED 23.10.2018 EXHIBIT P8 TRUE COPY OF THE SELECTION NOTICE NO.PHC/CHN/GL/245/2017 VOL.II DATED 13.01.2020 EXHIBIT P9 TRUE COPY OF THE BANK GUARANTEE AND STAMP PAPER SUBMITTED BY THE PETITIONER ALONG WITH THE COVERING LETTER DATED 30.01.2020 EXHIBIT P10 TRUE COPY OF THE LETTER NO.
PHC/CHN/GL/245/2017 VOL II DATED 30.01.2020 (RECEIVED VIA EMAIL ON 03.02.2020) RESPONDENT'S/S EXHIBITS: NIL