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2018 (7) TMI 1763 - BOMBAY HIGH COURTWinding up petition - sale by Official Liquidator pursuant to orders of the Court - differential premium - whether Transfer of leasehold rights which is an asset of a company in liquidation, either by the BIFR or the Company Court, would qualify as a formal transfer and accordingly no differential premium would be payable on the same? - Held that:- An aid to interpretation is that sales under BIFR schemes, according to Shri Chawan, are formal transfers. Therefore, under SICA (Sections 17(3) and 18(11)) in a restructuring scheme to revive the company, a sale of MIDC lease/assets by the Operating Agency was to be treated as a formal transfer. It would be wholly anomalous and illogical to treat a sale in winding up as a nonformal voluntary sale. Yet another aid to interpretation is the use of the expression “ordinary course of business” in connection with transfers by the process of merger, amalgamation, demerger. This indicates that where such transfers, even if sanctioned by the court, are part of business (i.e. commerce and not necessarily day to day business alone) then such transfers of MIDC land will be voluntary and shall attract differential premium. The position of the company in winding up is the very opposite of ordinary course of business because the company is not carrying on business and is being wound up instead. Hence, it would be reasonable and logical to treat this situation differently under the extant MIDC circulars as forming part of the category of formal/involuntary transfers that do not attract differential premium. In the circumstances, as holding that a sale by Official Liquidator pursuant to orders of the Court will be formal and involuntary transfer, MIDC will not be entitled to any differential premium but only to standard transfer charges. Extension charges - Held that:- For MIDC to claim the extension charges upto the date of winding up or even beyond upto the sale of the property, MIDC has to lodge its claim with Official Liquidator. This is because the extension charges have already accrued in favour of MIDC as against differential premium, which will have to be paid and determined, if payable only at the time of considering the transfer application of a transferee. Therefore, for extension charges, Official Liquidator to consider while adjudicating MIDC's affidavit of proof of debt and decide the quantum of extension charges, if any payable and for what period, whether upto the date of winding up or any earlier period or it is continuing. I am not making any observation with regard to extension charges and that can be decided at the appropriate stage. Therefore, (a) hold that this Court will be the Competent Court and has jurisdiction to decide whether MIDC is entitled to claim differential premium and extension charges; (b) in a sale of leasehold rights by Official Liquidator, it will be a formal and involuntary sale and therefore, no differential premium is payable to MIDC by Official Liquidator but only standard transfer charges and (c) extension charges whether payable and to what extent can be decided at the appropriate stage once MIDC lodges its claim with Official Liquidator.
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