TaxTMI 
TaxTMI 
2003 (4) TMI 462
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....and, buildings or premises where such equipment/ machinery is situated or is reasonably believed by the applicant to be situated; (iii)That the Official Liquidator attached to this Hon'ble High Court and in charge of all assets of M/s. Aryan Finefab Limited, be directed to pay to the applicant all costs, charges and expenses incurred by the applicant for retaking or repossession of the machineries/equipments described in para 7 of the present application. 2. The facts giving rise to the present application are that the applicant herein is a public limited company and the opponent-company (in liquidation) had approached the applicant for obtaining finance for the purchase of plant and machinery required for manufacture of certain goods. The applicant acceded to the request of the opponent-company and decided to provide machinery and/or equipments on hire purchase basis on the terms and conditions specified in that regard. Accordingly, an agreement of hire purchase was executed between the applicant and the opponent-company on 21-7-1993 and an amount of Rs. 63,00,000 was sanctioned by the applicant to the opponent-company under hire purchase facility. A second agreement of hire....
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....-company paid an amount of Rs. 2,00,000-on 14-7-1998 and 28-7-1998 by cheque of Rs. 1,00,000-each drawn on Punjab National Bank. Thereafter, the opponent-company has not paid any amount and, therefore, the applicant-company was constrained to approach this Court by filing Company Petition No. 198 of 1998 for winding up of the opponent-company. 2.5 The applicant-company had also filed Special Civil Suit No. 299 of 1999 against the opponent-company in the Court of Civil Judge (S.D.), Mahesana for repossession of the equipments and/or machineries leased to the opponent-company and also for restraining the opponent-company, its Directors, agents and servants from transferring, alienating, encumbering, parting with the possession, or dealing in any manner whatsoever the hired equipments and/or machineries lying at the factory premises of the opponent-company on Plot No. 1559/1/A, Vill. Raipur, Tal. Kadi, Distt. Mahesana. 2.6 On 24-4-2001, this Court passed an order for winding up of the opponent-company in Company Petition No. 198 of 1998 and a batch of other Company Petitions and Company Applications filed against the opponent-company. 2.7 On 29-1-2002, Special Civil Suit No. ....
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....party defendant in the said suit after passing of the winding-up order. 3.1 Mr. Buch in the alternative submitted that the agreement which is sought to be relied upon was not an agreement for "hire purchase" but was in fact a "lease" agreement, and that being so, the said agreement cannot be looked into as the documents are not executed on proper stamp fee, under the Bombay Stamp Act, 1958. Learned advocate submitted that the agreement being that of lease, the same was required to be executed on a stamp paper as provided in Entry No. 30 of Schedule I of the said Act. The document is executed on insufficient stamp paper, the same cannot be looked into and no relief can be granted to the applicant relying on that document. 3.2 Mr. Buch invited the attention of this Court to various paragraphs of the present application and also of the judgment of the learned Civil Judge (S.D.) Mahesana in Special Civil Suit No. 299 of 1999 wherein the words/phrases "leased", "finance facility" and the "leased property" are used indiscriminately. 3.3 Mr. Buch, learned advocate also relied upon the two Division Bench decisions of this Court in the matter between Virji Lavji Makwana v. Rainbow ....
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.... ownership of the machineries has not vested in the opponent-company, as the opponent-company has not paid all the instalments of hire purchase and the amounts due and payable under the provisions of the agreement. That being so, the answer to the question as to whether on the date of the order of winding up, the equipments/machineries though lying in the premises of the opponent-company, belonged or not to the opponent-company is in negative because on the reading of various clauses of the document, it is clear that the property did not pass to the opponent-company and, therefore, the equipments and machineries though lying in the premises of the opponent-company, did not belong to the opponent-company. 6. The contention that the decree was passed after the date of winding up does not warrant any consideration for the simple reason that the applicant-company is not required to base its claim on the decree. However, the same can be taken note of for finding an additional support to the claim of the applicant-company as even a Civil Court while considering the question in detail has come to the conclusion that the document was of "hire purchase" and that the ownership did not pas....