TaxTMI 
TaxTMI 
2013 (5) TMI 214
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....t No.16A Rani Jhansi Road, Motia Khan, New Delhi to one M/s Amar Singh & Co. who, prior to the order of winding up of M/s Globe Associates (P) Ltd. had agreed to sell/transfer the same to the said M/s Globe Associate (P) Ltd. As per the terms and conditions of the perpetual lease deed executed by the appellant DDA to M/s Amar Singh & Co., the same were transferable after obtaining permission of DDA and on payment of 'unearned increase'. 3. Upon the said M/s Globe Associates (P) Ltd. being ordered to be wound up, application under Section 446 of the Companies Act, 1956 was filed seeking specific performance of the said Agreement to Sell and during the pendency of which proceedings, rights of the company in winding up as an agreement purchaser were purchased by the respondent M/s Aeroshine and which was approved by the learned Company Judge vide order dated 18.08.1983. 4. The Official Liquidator (OL) filed an application being CA No.504/1983 for review of the order dated 18.08.1983 inter alia on the ground that the value of the land in question was much more and even DDA (appellant herein), which was arrayed as respondent in CA No.504/1983 was demanding a sum of Rs. 4,58,175.89....
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....ellant DDA took adjournments for this purpose and owing whereto the recording of the settlement, as agreed on 14.05.1985, was held up. 9. The matter so remained languishing till 19.09.1990, when it was finally ordered that M/s Aeroshine will pay the amount of Rs. 4,50,000/- (being the additional amount which it had agreed on 14.05.1985 to pay to OL) with 12% interest from 14.05.1985 to 13.10.1990 in the manner mentioned therein to the OL. The said amount was paid by the respondent M/s Aeroshine to the OL and the OL, as recorded in the order dated 12.11.1990, relinquished all his claims and rights in the plot in question. 10. When the matter was listed next thereafter on 24.12.1990, the counsel for the appellant DDA again sought time to take instructions as to the amount of unearned increase payable for registration of the Lease Deed in favour of respondent M/s Aeroshine. 11. On 11.01.1991, the appellant DDA informed that a sum of Rs. 70,59,773/- was payable. 12. The respondent M/s Aeroshine took a stand that the amount claimed by the appellant DDA was exorbitant. 13. The learned Company Judge in the impugned order has observed that though there may be a doubt whether....
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....d on that date DDA was directed to consider the application; (iii) that on the next date i.e. 10.09.1985, the counsel for the DDA took further time to take decision on the application; (iv) that it was only thereafter on 09.10.1985 that DDA stated that no such application has been made and which claim had been disputed by the counsel for the respondent M/s Aeroshine; (v) that the partner of M/s Aeroshine had also filed an affidavit that applications were filed and copy of the application was handed over to the counsel for M/s Aeroshine for handing over to the counsel for the appellant DDA pursuant to order dated 09.10.1985; (vi) that no reply had been filed by the appellant DDA to the said affidavit; (vii) that in the entirety of the facts, it was safe to infer and conclude that an application was submitted before 16.08.1985 with the appellant DDA with request to indicate unearned increase; (viii) that the Supreme Court in Union of India v. Dev Raj Gupta [1991] 1 SCC 63 has held that DDA can claim unearned increase at the rates prevailing as on the date of the application; and, (ix) that the delays by the appellant DDA in passing orders on the application would....
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....s and there was no material whatsoever before the learned Company Judge to hold and conclude that any such application was submitted with the appellant DDA before 16.08.1985. She has contended that in fact no application has been filed till the impugned order dated 31.08.2004 and thus the question to be determined in this appeal is whether the unearned increase payable by the respondent M/s Aeroshine was to be computed on the basis of the rates of the year 1985 as has been held by the learned Company Judge or on the rates of the year 2004. 19. The counsel for the appellant DDA has next invited our attention to the order dated 15.06.1999 of the appellant DDA on the subject of "Crucial date for working out the unearned increase" and prescribing the said date as the date when all required documents are filed in the office of the appellant DDA, complete in all respects. It is yet further argued that the application dated 02.07.1985, copy of which was filed along with the affidavit aforesaid is also not for permission to transfer but only of enquiring the unearned increase due and cannot be said to be an application for permission to transfer. 20. The counsel for the respondent M/....
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....ed increase payable and not of seeking transfer or offering to pay the unearned increase, but it is not as if the learned Single Judge was not conscious of the said fact. The reasons which have prevailed with the learned Company Judge nevertheless for directing payments of unearned increase at the rates as of 1985 are set out in Paras Nos. 'A' to 'F' at pages 14 to 16 of the impugned judgment and need is not felt to reproduce the same here. Suffice it is to state that the learned Company Judge has directed payment of unearned increase as on the rates prevalent in the year 1985 for the reason of approval to the transaction having been finally given in the year 1985 and the appellant DDA having been called to the Court in the same year in this respect. The learned Company Judge has thus concluded that the question of unearned increase was raised with the appellant DDA in the year 1985 itself and the rates applicable should be for that year only. 24. We see no reason to take any different view of the matter. It is not the case of the appellant DDA, neither before the learned Company Judge nor in this appeal that the application for transfer of leasehold rights has to be in any pres....