TMI Blog2007 (3) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... r in nature. M/s. Kanav Steels Private Limited was incorporated as a company under the Companies Act, 1956 (hereinafter to be referred as "the Act") on February 11, 1985. The name of the said company was changed to M/s. Shree Diwan Steels (India) Limited on May 31, 1990 (hereinafter to be referred as "the company"). M/s. Kanav Steels has purchased land measuring 27 kanals 5 marlas vide registered sale deed dated December 28, 1989. The order of winding up dated February 10, 1999, was passed whereby the company was ordered to be wound up and the official liquidator attached to this court was appointed as its liquidator. The Central Bank of India is one of the secured creditors of the company in liquidation. The said bank has filed an application for recovery of the amount due and payable to it before the Debts Recovery Tribunal, Jaipur, which was decided on March 17, 1999. In pursuance of the orders passed by this court on January 11, 2006, the official liquidator was permitted to conduct the sale of all the movable and immovable assets of the company in liquidation by associating the secured creditors. In pursuance of the said order, one Avtar Singh has been found to be the highes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions is abovesaid Navtej Singh. All the sales have been executed by Navtej Singh on the basis of jamabandi for the year 1983-84. It is categoric case of the applicants that through the abovesaid five sale deeds total land measuring 36 kanals 18 marlas was purchased for setting up steel plant and that after the purchase of the above land, boundary wall was raised on the entire area. A site plan has been attached by the applicants. The said site plan is annexure A2 in C.A. No. 631 of 2006 and annexure A6 in C.A. No. 127 of 2007. Still, another site plan has been attached by the applicant with affidavit dated September 27, 2006, which is annexure A2. Annexures A6 and A7 are other site plans attached with the additional affidavit, i.e ., the site plans produced before the civil court in respect of the suits filed by one Rishi Steels. Some of the relevant para graphs from C.A. No. 127 of 2007 read as under : "5. That, thus, through the abovesaid 5 sale deeds total land measuring 36 kanals 18 marlas was purchased for the purpose of setting up the steel plant. 6. That after the purchase of the above land measuring 36 kanals 18 marlas boundary wall was raised on the said entire are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,1999, for the sale of land measuring 7 kanals 19 marlas. In the auction held on November 12,1999, 4 kanals of the aforesaid land was put to auction and the decree-holder was the highest bidder who has given the bid of Rs. 3,40,000. The sale was confirmed by the executing court on December 18, 1999 and sale certificate was issued on February 23, 2000. It is pointed out that on the basis of said sale, purchaser allegedly trespassed into the premises of the company in liquidation on August 26, 2000. It is alleged that since the sale was of a specific khasra number, the auction purchaser could not take possession of the land which exclusively belongs to the company in liquidation. It is also pointed out that an application was filed by the official liquidator alleging trespassing into the premises of the company in liquidation on the basis of auction of the assets of the proprietary concern of Naresh Chately bearing C. P. No. 50 of 2003. In the said petition, it was alleged that the Central Bank of India has misled this court with reference to a site plan produced before the official liquidator and this court. On the basis of the aforesaid misrepresentation, C.P. No. 50 of 2003 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bandi further shows that the owners are shown in joint possession of the remaining land of their respective shares. Shri Vibhu Jhanji General Attorney of Shri Naresh Chately, has contended that there was a corporate marriage in respect of land of the company in liquidation, Naresh Chately and M/s. Chately Steels. There was no demarcation of any specific portion of land and, in fact, boundary wall existed in respect of the entire land measuring 36 kanals 16 marlas. The entire land purchased by three separate entities is so intertwined with each other that the sale of a compact block as projected by the official liquidator on the basis of site plan produced by the Central Bank of India is not correct. On the other hand, learned counsel for the bank has submitted that while creating the mortgage, the site plans were submitted by the promoters/directors of the company. The said site plan shows different portions in possession of the company in liquidation, Chately Steels and of Naresh Chately. The said site plan shows a passage to the land of the company in liquidation from the main road. Therefore, the sale has been rightly conducted by the learned official liquidator and the civi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29/12/1989 Nares Chately 1 kanal 7 marlas 27/116 34/20/1(5-16) A5 It may be noticed that the translated copies of the sale deeds appended with the applications do not give complete and correct details. The above chart has been prepared with the help of averments made in the application and the revenue records available on the record. The Full Bench of this court in Bhartu's case ( supra ) while considering the sale of a specific portion of the land described by a particular khasra number by a co-owner out of a joint khata, held that it is a sale of a share. It was held to the following effect : "... That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a co-owner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, 'A' who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers 'X' and 'Y which are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imited and Naresh Chately. Therefore, the argument raised Shri Ratta that only those specific khasra numbers sold to the company in liquidation can be put to sale cannot be accepted. Site plan : The site plan annexure A2 appended with C.A. No. 631 of 2006 is authenticated by counsel for the applicant. It also shows that khasra num bers 19 and 20 is purported to be in possession of M/s. Kanav Steels and Chately Steels. The said site plan is site plan prepared by the advocate for the applicant probably on the basis of khasra numbers mentioned in the sale deeds. Annexure A2 is another site plan produced along with the affidavit dated September 20, 2006. The said site plan shows certain areas common and portion of khasra number 13 in exclusive possession of Naresh Chately which is bounded on one side by the land of the company in liquidation and the other by Chately Steels Private Limited. The site plan produced by the applicant with the affidavit is attested by the shareholder Tej Sarup Matta. If the said site plan is to be believed, Naresh Chately has no access in respect of the part of khasra number 13. The site plan annexure A2 produced along with the application by the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid three titles and the khasra numbers thereto, were distinct within the boundary wall. Once three individual titles have put their holding jointly with the objective of common use, the stand taken by the applicant that individual khasra numbers alone could be put to sale is meaningless. The said contention is not tenable on the basis of revenue record or the principle applicable to the sale by a co-sharer and on the basis of site plans produced. The sale confirmed by the civil court in respect of the assets of the company cannot be taken into consideration as no permission of this court was sought before proceeding for sale of the assets of the company in liquidation. In fact, such aspect is not disputed by any of the parties. Similarly, the sale of the assets of Naresh Chatley by the civil court will not affect the sale conducted by this court in respect of the assets of the company in liquidation. In respect of argument that actual possession of 4 kanals has been handed over to the purchaser of the land adjacent to the road in pursuance to the civil court decree and that such delivery of possession of invalid, it is suffice to state that even if possession of specific p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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