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2020 (5) TMI 245 - HC - Companies LawMaintainability of appeal - Possession of the four flats with Official Liquidator - police protection granted - protection under Section 53A of the Transfer of Property Act - the Ex-Management submits that the present appeal is not maintainable as it is in the nature of a second appeal - HELD THAT:- The present appeal is maintainable as it is not in the nature of a statutory second appeal. In the present case, the initial claims were decided not by the Official Liquidator but by a Committee appointed by a Division Bench - Consequently, the preliminary objection raised by the learned counsel for the Ex-Management is rejected. The appellants had failed to prove their ownership to the flats in question as they had not produced any original title documents, but only photocopies. Even during the course of hearing, it was admitted before us that the appellants had not produced their income tax returns to prove the payment of consideration to M/s J.V.G. Finance Ltd. despite being repeatedly asked by the learned Single Judge. Moreover, the purchasers under the alleged title documents i.e. the appellants had not stepped into the witness box. The argument of the appellants that there was no necessity in the present case for the appellants to step into the witness box is contrary to facts and untenable in law. It is settled law that to succeed in a suit for specific performance (which is the nature of the claim filed by the appellants), the appellants had to prove that a valid agreement of sale was entered into by the company in liquidation in their favour and also the terms thereof; that the company in liquidation committed breach of the said agreements; and the appellants were always ready and willing to perform their part of the obligations in terms of the agreement - If the appellants had to prove that they were always ready and willing to perform their part of the agreement, that is, to perform their obligations in terms of the contract, necessarily they should have stepped into the witness box and given evidence that they had all along been ready and willing to perform their part of the contract and subjected themselves to cross-examination on that issue. Therefore, a third party who has no personal knowledge and is not an immediate relative cannot give evidence about such readiness and willingness, even if he/she is an attorney holder of the person concerned. The appellants have failed to step into the witness box and/or prove the payment of any consideration amount to the company in liquidation, there is no question of Section 53A of the Transfer of Property Act being attracted to the present proceedings - Petition dismissed.
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