TaxTMI 
TaxTMI 
2020 (8) TMI 584
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....extend the time for building completion by two years from the date of transfer of the said plot in the name of the applicant and for other reliefs. Some of the relevant facts for the purpose of deciding this Company Application are as under :- 2. On 28th January, 1978 under a Partnership Deed, the firm namely M/s. Transpower Corporation was constituted. On 7th March, 1980 vide an agreement executed between MIDC and the said M/s. Transpower Corporation, the said Plot bearing No. B-16 situated within Taloja Industrial Area of MIDC, Taluka Panvel, Raigad District (hereinafter referred to as "the said plot") was allotted to M/s. Transpower Corporation on the terms and conditions set out therein. On 7th March, 1980, the MIDC handed over the possession of the said plot to the said M/s. Transpower Corporation. On 4th May, 1980, the said M/s. Transpower Corporation was converted into a private limited company in the name "Transpower Engineering Private Limited". 3. On 31st December, 1980, the said partnership firm M/s. Transpower Corporation was dissolved. On 27th September, 1991, the said M/s.Transpower Engineering Private Limited was converted into a limited company, being th....
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....tor. 7. This Court by order dated 9th August, 2012 accepted the said offer made by the said M/s. Attar Buildcon Pvt. Ltd. in the sum of Rs. 5,50,00,000/-. This Court directed the official liquidator to execute the necessary documents in favour of the said M/s. Attar Buildcon Pvt. Ltd. and/ or their nominees and handover the said property to M/s. Attar Buildcon Pvt. Ltd. The said M/s. Attar Buildcon Pvt. Ltd. deposited the entire payment of Rs. 5,50,00,000/- towards the sale price with the official liquidator. The official liquidator handed over the possession of the said plot of land along with factory building to the said M/s. Attar Buildcon Pvt. Ltd. on 28th August, 2012. 8. On 6th February, 2014, the official liquidator executed Deed of Assignment which was duly registered in favour of the applicant on the said plot being the nominee of M/s. Attar Buildcon Pvt. Ltd. The applicant addressed a letter to official liquidator on 24th March, 2015, seeking issuance of an NOC in respect of the Water Dues for the said plot. It is the case of the official liquidator that it was in the record of the official liquidator that a water bill was issued by the MIDC dated 11th March, 2015 i....
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....s reliefs. 12. Mr. Kamat, learned counsel for the applicant invited my attention to various documents annexed to various affidavits filed by the parties and also relied upon various judgments during the course of his argument. He also invited my attention to the contentions raised by the respondent no.2 MIDC in the affidavit in reply and also the additional affidavit in reply filed by the respondent no.2 in this application and in the affidavit in reply filed by the Official Liquidator in this application. It is submitted by the learned counsel that on 10th October, 1979, the respondent no.2 had allotted a plot no. B-16 to Transpower Corporation. The possession of the said plot was handed over to Transpower Corporation on 7th March, 1980. The order of allotment was issued by the Area Manager of respondent no.2. He also relied upon the possession receipt dated 7th March, 1980 issued by the respondent no.2 in respect of plot no.B-16. 13. It is submitted by the learned counsel that the said plot no. B-16 was amalgamated with plot nos.B-25, 26 and 27 on 8th August, 1980 for the proposed construction of a factory building. The respondent no.2 MIDC issued a letter dated 8th August,....
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.... respondent no.2 to the Transpower Engineering Private Limited (predecessor of the company in liquidation) informing that it had taken note in the name of the Transpower Engineering Private Limited carrying on business as the proprietor under the name and style of M/s. Transpower Corporation. He submits that it is thus clear that in the record of the respondent no.2, the company now in liquidation was the owner/proprietor of Transpower Corporation. 17. Learned counsel for the applicant also invited my attention to the letter dated 29th January, 1992 addressed to the company in liquidation by the respondent no.2 informing that it had noted the change in the name of the company in liquidation from Transpower Engineering Private Limited to Transpower Engineering Limited. He submits that it is thus clear that as far back as in 1992, the company in liquidation was the lessee of the amalgamated plot in the records of the respondent no.2. Learned counsel also placed reliance on a Tripartite Agreement dated 7th March, 1980 between the respondent no.2, Maharashtra State Financial Corporation and Transpower Corporation (predecessor of the company now in liquidation) permitting the Transpo....
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.... by the respondent no.2 is that the respondent no.2 did not have in its records the name of the company in liquidation as the allottee/lessee of the said plot. It is the case of the MIDC that there is a transfer from the partnership firm to the company in liquidation attracting differential premium. It is submitted that on amalgamation of these four plots, there became one plot. He relied upon the document at page 135 of the further affidavit and would submit that it is clear that the amalgamation of the plot was sanctioned by the respondent no.2 subject to the conditions mentioned therein. He also relied upon page 136 of the further affidavit and would submit that it is also clear that the MIDC had granted approval on 23rd February, 1981. He also relied upon the document at page 132 and would submit that the said document would also clearly indicate that all four plots were treated as one plot in the plan. 21. It is submitted by the learned counsel that the contention of the respondent no.2 that it was not aware of the transfer of the said plot from the partnership firm to the company in liquidation is ex-facie false. He invited my attention to the documents at pages 150 and 15....
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....ficial Liquidator pursuant to an order passed by the Company Court cannot be compared with the sale conducted in BIFR proceedings. In BIFR proceedings, endeavours are made to restructure a company. The Official Liquidator on the other hand is an official appointed to liquidate the assets of the company in liquidation so as to pay and distribute the same amongst the creditors in accordance with law. Such transfers effected pursuant to a Company Court are compulsory in nature and are not done voluntarily. 25. Learned counsel for the applicant submits that even otherwise the said circular dated 12th December, 2011 issued by the MIDC clearly indicates that the sale conducted by the Official Liquidator cannot be treated as a sale between a willing buyer and a willing seller. It was a compulsory act where the Company Court was disposing off the assets by selling the same. Such a sale is a formal sale or an involuntary sale which does not attract payment of differential premium. In support of this submission, Mr.Kamat, learned counsel for the applicant placed reliance on the judgment of this court in case of M/s.Transpower Engineering Limited (In liquidation) in Official Liquidator's R....
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....ndent no.2 was incorporated was to ensure that the plot allotted by the respondent no.2 was not kept idle and that an industry is established and kept running. He submits that since in this case the building was constructed on the amalgamated plot and occupation certificate was granted, the construction on the amalgamated plot was complete and the permission by CIDCO, the then planning authority to occupy and carry on the business from the said structure was permitted by issuance of occupation certificate. 29. It is submitted by the learned counsel that unless it is shown that CIDCO separately issues building completing certificate after further compliance as required under their General Development Control Regulations, the respondent no.2 cannot claim its entitlement for extension charges. He submits that without prejudice to the said submission, respondent no.2 at the highest can lodge its claim with the Official Liquidator and claim such extension charges in accordance with law. His client is a bonafide purchaser for value without notice and thus cannot be asked to pay such charges on the plot in question. The auction took place and until the company application was preferred....
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....r paragraphs 19 to 22, 24 to 26, 28 and 32 to 34 in support of the submission that merely because an agreement has a clause that no tenancy is to be created will not itself preclude the instrument from creating a lease. The court has to see intention of parties and the surrounding circumstances including the conduct. 32. Learned counsel for the applicant placed reliance on the judgment of Delhi High Court in case of Municipal Corporation of Delhi vs. Pradip Oil Corporation and Another, 100(2002) Delhi Law Times 442 (Full Bench) and in particular paragraphs 37, 38, 40 to 44 and 50 in support of the submission that the substance of the document must be preferred to the form. The real test is the intention of the parties i.e. as to whether they intended to create a lease or a licence. If the document creates an interest in the property, it is a lease but if only permits another to use of the property, or which the legal possession continues with the owner, it is a licence. If a party gets an exclusive use of the property under such document, he is considered to be a tenant but the circumstances may be established which negative the intention to create a lease. He submits that mere ....
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....espect of two of the workers in the sum of Rs. 5,30,542/- and Rs. 5,40,350/- out of those five additional claims so far. It is submitted that pursuant to the request made by the respondent no.2, the Official Liquidator has provided various documents to the respondent no.2. He submits that pursuant to the order dated 9th August, 2012 passed by this Court in Official Liquidator's Report No.261 of 2012, the Official Liquidator has already sold the said plot bearing no.B-16 to M/s. Attar Buildcorn Private Limited for Rs. 5,50,00,000/- who has nominated M/s.Posh Infrastructure Private Limited, the applicant herein. 36. It is submitted that the Official Liquidator has already executed a sale deed dated 7th February,2014 in respect of the said plot bearing no.B-16 in favour of M/s.Posh Infrastructure Private Limited. He submits that the Transpower Corporation, a partnership firm was converted into M/s.Transpower Engineering Private Limited and was later converted to M/s.Transpower Engineering Limited. He relied upon a copy of Form 8 registered with the Registrar of Companies, Maharashtra showing that M/s. Transpower Corporation was converted to Transpower Engineering Private Limited. H....
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....ter. It is submitted that respondent no.2 has already recognized the company in liquidation as its lessee in the respect of the said plot bearing no. B-16. The applicant had addressed a letter on 24th March, 2015 to the official liquidator seeking issuance of an NOC in respect of the water dues for the said plot. 39. It is submitted that the official liquidator found in its record a water bill issued by MIDC dated 11th March, 2015 in the name of Transpower Engineering Private Limited for an amount of Rs. 4,78,508/-. The meter status for the said plot shows as disconnected. He submits that the respondent no.2 thus has already noted the change of constitution of the partnership firm into a private limited company. The local authority otherwise would not have issued a water bill in the name of the Transpower Engineering Private Limited. He submits that the said order dated 19th August, 2012 thus passed by this Court thereby directing the official liquidator to sell the said plot bearing no. B-16 is final and binding on respondent no.2 also. Respondent no.2 thus cannot be allowed to agitate its alleged claim in absence of any challenge to the said order dated 19th August, 2012. 4....
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....er Engineering Private Limited and from 27th September, 1991, the private limited company was converted into a limited company being the company in liquidation. 42. Learned counsel for the official liquidator placed reliance on the judgment of this Court in case of Commissioner of Income Tax, Mumbai v/ s. Texspin Engineering and Manufacturing Works, Mumbai, 2003 (5) Mah. Gen. 507 in which this Court had dealt with an issue in respect of levy of capital gain tax under Section 45(1) and 45(4) of the Income Tax Act, viza-viz its applicability to a conversion under Part IX of the Companies Act, 1956. He relied upon paragraphs 5 and 6 of the said judgment and would submit that once there is a vesting of asset from a firm to a private limited company and where the constitution of the firm itself had not changed, the properties are considered to be vested in the company, as they exist. This ipso facto does not amount to a transfer of asset. The contention of the respondent no.2 that transfer charges are leviable on the basis that there was a transfer of an asset from a firm to a private limited company is ex-facie erroneous. 43. Learned counsel for the official liquidator placed rel....
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....guidelines, such transfers were considered as formal transfers. The respondent no.2 was fully aware about the change in the constitution of the firm to that of the private limited company. The MIDC had provided the said water bill to the applicant when the applicant had requested for an NOC in respect of the water dues for the said property in the month of March 2015. It is thus clear that the MIDC had verified its record and thereafter had issued the water bill. 46. Learned counsel for the official liquidator placed reliance on the judgment of Supreme Court in case of Andhra Pradesh Power Coordination Committee v/s. Lanco Kindapalli Power Limited and Ors., (2016) 3 SCC 468 in the context of the dues to be recovered by statutory authorities. It is held by the Supreme Court in the said judgment that the test to be applied in absence of a period of limitation for recovery prescribed under the statue is whether the claims, if legally not found to be recoverable in a civil suit, or in any other regular proceedings, on account of limitation, than such claims cannot be entertained. The Supreme Court laid down those principles on the touchstone of Article 14 of the Constitution of Indi....
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....), 3(d), 3(l) and 5 to 8 of the said document. 50. It is submitted that the said agreement clearly provided that onlyafter the construction of the factory building within the specified time and obtaining building completion certificate from Executive Engineer of respondent no.2, a lease for 95 years would be executed. He submits that the extension of benefit of concession/waiver/restriction on transfer charges as well as extension charges in respect of the said plot can not be granted to the auction purchaser of the plot in possession of the company in liquidation who was only a licencee of the said plot. He submits that the applicant had no transferable interest in the said plot and such concession would not be just and legal, as it would deprive the respondent no.2 of the funds which would have been utilized for creating/augmenting industrial infrastructure in the State of Maharashtra. He submits that if the prayers in the company application are granted, it would result in utilization of public funds for the benefit of private entity. 51. It is submitted by the learned counsel that Maharashtra Industrial Development Act, 1961 is a special Act enacted by the State Legislatu....
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....red or held by the MIDC. He relied upon the definitions of the 'building completion certificate' and 'building regulations' and submits that the MIDC is empowered to dispose of the plots of land by public auction or by entertaining individual applications. The said plots can be allotted on rental basis or on premium lease basis or partly on rental basis and partly on premium basis. The plot in question had been allotted on the basis of the application received from the partners of the erstwhile Transpower Corporation. 54. It is submitted by the learned counsel that only after payment of premium or security deposit as the case may be, the allottee shall execute an agreement to lease in Form C provided in the said regulations in accordance with regulation 13. He submits that under regulation 18, on production of 'Building Completion Certificate' the allottee shall be entitled to execution of a lease in their favour in Form 'D' appended to the said regulation. Only after building completion certificate is obtained by the allottee, a lease would be executed in favour of the allottee under regulation 18. It is submitted that in this case, as far as plot no.B-16 is concerned, an agree....
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.... did not submit any building completion certificate, no lease contemplated under clauses 7 and 8 read with regulation 18 was executed. The said Transpower Corporation continued to be the licencee of plot no.B-16. 57. It is submitted that the company in liquidation was in possession of plot no.B-16 only as a licencee as the said company joined the said Transpower Corporation as a partner. He submits that the said plot thus could have never become the property of the company in liquidation and thus the Official Liquidator could not have auctioned the said licence in respect of plot no.B-16. In support of his submission that such an agreement to lease can never be termed as lease, he relied upon the judgment of Supreme Court in case of ICICI vs. State of Maharashtra (1999) 5 SCC 708 and in particular paragraphs 1 to 4, 6 and 8. He also placed reliance on the judgment of this court in case of State of Maharashtra vs. Jasubhai Business Services Private Limited, 2019 SCC OnLine Bom 4414 and in particular paragraphs 4, 5, 8, 16 to 19, 25 and 32. 58. It is submitted by the learned counsel that since the MIDC being a statutory corporation governed by the provisions of the said MID Act....
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....uted. He distinguished the judgment of Supreme Court in case of Smt.Rajbir Kaur and Another (supra) and judgment of Delhi High Court in case of Municipal Corporation of Delhi (supra) relied upon by the learned counsel for the applicant and would submit that none of these judgments would assist the case of the applicant for the aforesaid reasons. 61. Learned counsel for the respondent no.2 submits that the company in liquidation in this case was incorporated on 4th May, 1980. He relied upon the provisions of the Memorandum of Association of the company in liquidation and would submit that the main object of company was to enter into partnership in the business carried out by the firm Transpower Corporation. There is thus no conversion of partnership firm into company as sought to be canvassed by the Official Liquidator in the affidavit in reply filed by him. He submits that in another proceeding of the said company in liquidation, the liquidator had taken a stand that the company in liquidation was incorporated with the object of joining as a partner in Transpower Corporation. The said stand taken by the Official Liquidator is recorded by this court in its order dated 10th Octobe....
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....eme Court in case of M/s.Parasram Harnand Rao vs. M/s.Shantiprasad Narinder Kumar Jain and Another, (1980) 3 SCC 565 and in particular paragraphs 2 and 6. He submits that the Official Liquidator merely steps into the shoes of the company in liquidation and thus sale by the Official Liquidator under the orders of court is on behalf of the company in liquidation. Such a sale by the Official Liquidator thus would be a voluntary sale. He submits that in this case only an agreement to lease dated 7th March, 1980 between the MIDC and the partners of Transpower Corporation was executed. The said agreement was purely a licence with a provision for execution of lease deed in future upon completion of the factory building within the stipulated time and after submitting the building completion certificate issued by the Executive Engineer of MIDC in accordance with provisions of MIDC Disposal of Land Regulations, 1975. 65. It is submitted by the learned counsel that the official liquidator had thus when stepped into the shoes of the company in liquidation, was only as a licencee of the said plot bearing no.B-16. The Official Liquidator thus could not have validly and legally transferred the....
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.... the letter dated 8th August, 1980 from MIDC allegedly sanctioning the amalgamation of plot nos. B-25, B-26, B-27 and B-16 is concerned, it is submitted by the learned counsel that the said sanction letter dated 8th August, 180 itself had imposed two conditions i.e. 1) that this permission is exclusively for the purpose of construction of factory building and 2) that for all other purposes including payment of annual rent all the plots will be treated as separate one. He submits that the said sanction letter was only for construction purpose and for all other purpose the plots are treated as separate including the nature of document namely lease or licence. He submits that at the relevant time in respect of plot no. B-16, there was only a licence to enter upon the plot and to construct a factory building. 69. The sanctioning of plans by communication dated 23rd February, 1981 would also not alter the nature of the said licence in respect of plot no. B-16 because only after construction as per the sanction plans and obtaining the building completion certificate, a lease in respect of the said plot bearing no. B-16 could have been executed. He relied upon clause 21 of the said san....
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....g powers under Section 64 i.e. MIDC Disposal of Land Regulations, 1975 are statutory in nature and deal with the terms and conditions for disposal of lands. He relied upon Regulation 29 and would submit that in exercise of the said power under Section 15A read with Regulation 29, the MIDC has issued various circulars from time to time taking into consideration the requirement of industrial areas, the policy of State Government and the aims and object of the MIDC i.e. for securing the orderly establishment in industrial areas and industrial estates of industries in the State of Maharashtra and to assist generally in the organisation thereof. 72. It is submitted that the MIDC has issued 5 circulars which deal with transfer charges as well as extension charges, dated 12th May, 1998, 14th August, 1998, 12th December, 2011, 10th June, 2013 and 29th April, 2014. He submits that in this case the agreement to lease has been executed between the parties on 7th March, 1980. He relied upon clause 1 and clause 3(a) and (d) and would submit that those clauses cast obligation on the licencee i.e. the Transpower Corporation to complete factory building in accordance with the sanctioned plans w....
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....s thus binding on the official liquidator and the applicant. Extension of time for development of the plot is possible only upon actual payment either by the liquidator or by the applicant which is pre-requisite for getting extension. The applicant or the official liquidator cannot ask the MIDC to waive off the extension charges when the applicant as well as the official liquidator are merely licencees having no better title in the property except as provided in the agreement to lease dated 7th March, 1980. 75. It is submitted by the learned counsel that merely because official liquidator has been appointed of the assets of the company in liquidation, it cannot be a fetter on the liability to pay extension charges under the agreement to lease as failure to pay the extension charges brings the agreement to lease to an end. The liquidator or the applicant cannot request this Court to re-write the contract between the MIDC and the said Transpower Corporation to waive off or restrict the extension charges. This Court has no power under Section 446(2) or Section 457 of the Companies Act, 1956 to re-write the contract. 76. It is submitted by the learned counsel for the MIDC that ex....
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.... that the Company Applicant thus filed by the applicant deserves to be dismissed with exemplary cost. 79. Mr. Kamat, learned counsel for the applicant in rejoinder reiterated the submissions made by him in his initial arguments. He distinguished the judgment of Supreme Court in case of Shri Ramtanu Co-operative Housing Society Limited (supra) relied upon Mr. Chawan, learned counsel for the respondent no.2 on the ground that the said judgment was dealing with the challenge to the constitutional validity of the MID Act. The principle applied in this case was doctrine of pith and substance. It was nobody's case that the legislature whilst enacting MID Act has trenched upon a different entry in the concurrent list. He submits that in any event, the presidential assent under Article 254 of the Constitution of India, is of no assistance as it has no application qua the Companies Act, 1956 which is in list I and in the concurrent list. The said judgment thus would not assist the case of the respondent no.2 and is distinguishable in the facts of this case. 80. Learned counsel for the applicant distinguished the judgment of this Court in case of M/s. Emtex Industries (India) Limited a....
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....operty in the facts of that case was that of the owner. In the present case, the exclusive possession was of the company in liquidation. MIDC had permitted amalgamation of the plot. The other three plots bearing nos. B-25, B-26 and B-27 were leasehold plots in respect of which lease deeds were already executed. No landlord would permit amalgamation of a licenced plot with the leased plot. MIDC had also permitted creation of mortgage of the plot no. B-16 admittedly which would also show that the intention was to treat the agreement of lease as a lease itself and not the licence. The said judgment is thus clearly distinguishable in the facts of this case. 84. Learned counsel for the applicant distinguished the judgment of this Court in case of State of Maharashtra vs. Jasubhai Business Services Private Limited (supra) relied upon by the learned counsel for the respondent no.2 on the ground that the said judgment is not at all relevant for this case. He invited my attention to paragraphs 8, 9, 24 and 28 of the said judgment and would submit that the definition of the lease for the purpose of Stamp Act is different. In case of licence there is no transfer of interest in favour of th....
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.... the said Transpower Corporation. On 04th May, 1980, Transpower Corporation was converted into Private Limited Company under the name of Transpower Engineering Pvt. Ltd. On 27th November, 1991, the said Transpower Engineering was converted into a Limited Company which company came to be wound up subsequently (hereinafter referred to as the Company in Liquidation). The Form No.23 was filed with the Registrar of Companies in that regard. 89. It is not in dispute that M/s. Metal Tubes and Rolling Mills had filed a Company Petition against the said company seeking winding up of the said company in the year 1998. The said company was ordered to be wound up by this Court by an order dated 22nd January, 2008. On 29th January, 2011, the Official Liquidator took possession of the said Plot bearing No.B-16. The Official Liquidator was informed about the said plot by some of the workers of the said company in liquidation in the month of November/December 2010. 90. On 13rd January, 2012, the Official Liquidator invited claims against the said company in liquidation under Rule 148 of the Companies (Court) Rules 1959 pursuant to which the Official Liquidator received 285 claims. The Offici....
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....ession "which may relate to or arise in the course of winding of the company" are words of wide import, clothes the company Court with the power to decide any question whatsoever that may arise whether of law or fact, which may relate to or arise in course of the winding up of the company. It is held that the power as given under Section 446(2)(1)(d) therefore could include the power to grant a declaration as prayed for in the said Official Liquidator Report. 95. After construing Section 456(1) of the Companies Act, 1956, this Court held that power of Company Court is vast. The leasehold rights of the company are an asset of the company which is capable of sale through the process of liquidation. The Official Liquidator has power to take possession even MIDC property given on lease and to sell the subsisting leasehold rights during the the Court of winding up. Under Section 457(1)(c) of the Companies Act, 1956, the Official Liquidator in winding up by the Court shall have power with the sanction of Court to sell the immovable property by public auction or private contract with power to transfer the whole thereof to any person or body corporate, or to sell the same in parcels. Th....
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....favour of the Company in Liquidation as claimed or otherwise, the differential premium for the second transfer i.e. from company in liquidation to the applicant as demanded during the course of the argument or is entitled to recover only standard transfer charges or not? Learned Counsel for the applicant, for the Official Liquidator and for MIDC made several submissions on this issue before this Court and relied upon whether provisions of the Companies Act, 1956, MID Act and various regulations framed by MIDC under the said MID Act and also various judgments delivered by the Supreme Court and this Court in support of their rival contentions. 99. It was vehemently contended by Mr. Chawan, learned counsel for the MIDC that according to the records of MIDC, there is an agreement of lease dated 17th March, 1980 in favour of the M/s. Transpower Corporation, a partnership firm who had been described as licencee in the said agreement to lease. The MIDC could have executed a lease deed for 95 years only after the construction of the factory building within specified time and obtaining Building Completion Certificate by the licencee from the Executive Engineer of MIDC under various claus....
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....the intention of the parties whether they intended to create a lease or a licence, (c) if the document creates an interest in the property, it is a lease but if only permits another to use of the property, of which the legal possession continues with the owner, it is a licence (d) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant, but the circumstances may be established which negative the intention to create a lease. 103. The lender who was mortgagee in respect of the said plot also construed the said mortgage transaction by accepting the leasehold rights of the said Transpower Corporation in the said plot as and by way of security. This Court also while granting permission to sell the rights of the Company in Liquidation by order dated 21st June, 2012 also considered the rights in favour of the company in liquidation of the said plot as the leasehold rights. The MIDC has not challenged the said order passed by the Company Court directing the Official Liquidator to sell the leasehold rights in the said plot till date though the said order was passed as far back as on 21st June, 2012. The principle of law laid d....
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....sion of said Transpower Corporation in Transpower Engineering Pvt. Ltd. and thereafter by the Transpower Engineering Pvt. Ltd. to Transpower Engineering Limited. 106. On perusal of the letter dated 29th January, 1992 annexed at page 151 of the pleadings, it is clear that on the basis of fresh incorporation certificate, the MIDC had noted the change in its records, in name of Transpower Engineering Ltd. MIDC informed that further correspondence would be in the name of Transpower Engineering Limited. Though both these letters had not referred to Plot No.B-16, MIDC did not dispute before this Court that plot No.B-16 was amalgamated with plot Nos.B-25, B-26 and B-27. Be that as it may, the factum of change in the name of M/s. Transpower Engineering Pvt. Ltd. to M/s. Transpower Engineering Limited on the basis of fresh Certificate of incorporation is not disputed by the MIDC. The amalgamation of Plot No.B-16 had taken place with the Plot Nos.B-25, B-26 and B-27 in the year 1981. 107. Though the factum of change from Transpower Corporation to M/s. Transpower Engineering Pvt. Ltd. and thereafter, in the name of M/s. Transpower Engineering Ltd. was to the knowledge of MIDC as far bac....
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....he Official Liquidator. 110. Insofar as the recovery of differential premium from the first transfer is concerned, more than 40 years have been passed from the date of conversion of the firm i.e. Transpower Corporation into M/s. Transpower Engineering Pvt. Ltd. and more than 29 years from the date of conversion from the Transpower Engineering Pvt. Ltd. to the Transpower Engineering Ltd. The respondent No.2 was fully aware of such transfer at least more than 40 years from the date of conversion of partnership into the Private Limited Company i.e. in the year 1980 and for more than 29 years from the conversion of Private Limited Company into a Limited Company in 1981. The claim if any, of the MIDC for differential premium on the first transfer is thus ex-facie, barred by law of limitation. 111. There is no dispute about the proposition of law raised by Mr. Chawan learned Counsel for MIDC that MIDC is a Statutory Authority constituted under the provisions of MID Act, 1961 or that the provision of MIDC for disposal of Rent Regulation Act, 1975 are statutory in nature and deal with the terms and conditions of the disposal of a lands of MIDC. Such statutory powers vested in MIDC ho....
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....ere the occupation certificate was issued and the penal charges were levied because building completion certificate was not obtained. The said Judgment of this Court in the case M/s. Emtex Industries (India) Ltd. & Anr. (supra) would thus not assist the case of the MIDC and is clearly distinguishable in the facts of this case. 114. Insofar as the Judgment in the case of ICICI (supra) relied upon by the learned Counsel for the MIDC is concerned, the Supreme Court was dealing with the definition of lease under the provision of Bombay Stamp Act. In the said Judgment the definition of lease was considered in the context of Stamp Act for the purpose of collection of stamp duty. The Supreme Court accordingly held that the Collector has to look at the nomenclature of the document without getting into the intention of the parties and the conduct of the parties. In this case the possession of the property was handed over by MIDC to Transpower Corporation. The exclusive possession of the said plot was with the Transpower Corporation and thereafter with the Transpower Engineering Private Ltd and thereafter with Transpower Engineering Ltd. The Judgment of Supreme Court in the case of ICICI ....
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....n was only for the purpose of construction of factory building and all other purposes of the plots would be treated as separate. The said Occupancy Certificate was only in respect of Plot B-25, B-26 and B-27 by CIDCO. Learned Counsel vehemently contended that on the basis of building completion certificate issued by Executive Engineer of MIDC, the MIDC has executed a lease deed dated 20th December, 1979 in respect of Plot Nos. B-25, B-26 & B-27. No such lease deed was executed in respect of plot No. B-16 by MIDC either in favour of Transpower Corporation or Transpower Engineering Pvt. Ltd. or in the name of Transpower Engineering Ltd. This Court is of the view that since the interest in the said plot was already created by MIDC in favour of M/s. Transpower Corporation by agreement dated 7th March, 1980 execution of lease deed was merely the ministerial act required to be carried out in favour of the said M/s. Transpower Corporation and MIDC or thereafter between Transpower Engineering Pvt. Ltd. and MIDC. 117. There is no substance in the submission of Mr.Chawan, learned Counsel for Respondent No.2 that the said M/s. Transpower Corporation was only a licensee and thus even if the....
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....ategories of transfer under circulars dated 12th May, 1998 and 12th December, 2011. This Court adverted to an unreported Judgment of Division Bench of this Court in the case of M/s. Colour Tech Coating (I) Ltd. Vs. Maharashtra Industrial Development Corporation & Ors. in Writ Petition No. 2288 of 2014 delivered on 4th February, 2015 on the issue whether the transfer of the land which was subject matter of the said proceeding was a voluntary transfer or was an involuntary transfer. The said Judgment of Division Bench was pressed in service by the learned Counsel for the MIDC in support of his contention that the transfer in question in the matter was involuntary and thus the MIDC was entitled to collect 30% differential premium for the transfer. 120. A learned Single Judge of this Court in the said Judgment dated 26th July, 1980 in Official Liquidator's Report No. 466 of 2016 distinguished the said Judgment of Division Bench of this Court in the case of M/s. Colour Tech Coating (I) Ltd. Vs. Maharashtra Industrial Development Corporation & Ors. (supra) and held that the said Judgment was not applicable to the facts and circumstances of the case. The Division Bench of this Court in....
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....y law of limitation, no recovery can be made by MIDC in respect of first transfer towards differential premium or under any other head. 123. A Division Bench of this Court in an unreported Judgment in the case of Tarapur Industries Pvt. Ltd. & Anr. Vs. Maharashtra Industrial Development Corporation & Ors. delivered on 5th February, 2020 in Writ Petition No. 4191 of 2015 considered the situation where promoter of the proposed private company had proposed to transfer the land to a private limited company. The MIDC had demanded 30% differential premium on such transfer to the promoter of the private limited company who was the original lessee. This Court construed Clause 5 of the Circular dated 12th May, 1998 and held that the transfer by a promoter of a private limited company in favour of private limited company would simply be a transfer from the promoter of a company incorporated by the promoter and would fall in the 4th category i.e. "formal transfers" and therefore MIDC could not claim 30% differential premium. In the facts of this case also the partners of M/s. Transpower Corporation had promoted the said Transpower Engineering Pvt. Ltd. 124. The Memorandum of Association....
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....ry transfer and would attract the payment of standard transfer charges only. It is not in dispute that this Court has already permitted the execution of the deed of assignment in favour of the Applicant in respect of said leasehold right as a nominee of the successful bidder. The Applicant has already paid the entire consideration amount to the Official Liquidator and is already put in physical possession thereof. The Official Liquidator has also settled the claims of various creditors or has distributed dividend out of the said sale proceeds. 127. Next question arises for consideration of this Court is whether MIDC can raise demand for payment of extension charges for allegedly not carrying out development of the said plot by Transpower Corporation or thereafter by Transpower Engineering Pvt. Ltd. within the time prescribed or not. In this regard learned Counsel for both the parties invited attention of this Court to various correspondence entered into between the parties. On one hand it was the case of the applicant that the Occupancy Certificate for Plot No. B-16 which was already allowed to be amalgamated with other three plots was issued. The applicant also relied upon the ....
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....arlier period or it is continuing. 130. MIDC is therefore at liberty to file its affidavit of proof of debt for claiming quantum of extension charges as well as for payment of standard transfer charges for transfer of leasehold rights by the company in liquidation in favour of the successful bidder/its nominee as it deems fit with the Official Liquidator within four weeks from today. The Official Liquidator shall decide such claim for payment of extension charges and standard transfer charges in accordance with law and on its own merit including issue of limitation, if any. The observations made by this Court in this Judgment in respect of payment of extension charges are prima facie. If there is any delay on the part of MIDC in filing affidavit of proof of debt for claiming extension charges or standard transfer charges till date or till the date of making such application, MIDC would be at liberty to file an application for condonation of delay in filing of proof of debt for claiming such charges. If any such application is filed, this Court may consider such application for condonation of delay on its own merit. 131. Insofar as the payment of differential premium now deman....