TMI Blog2020 (2) TMI 1529X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the category of formal transfer - The circular dated 12.5.1998 does not mention that the formal transfer can be only between the original allottee and the transferee. The transfer from Petitioner No.2 to Petitioner No.1 was in the nature of formal transfer and hence as per their own circular dated 12.5.1998, the Respondents are not entitled to demand and recover 30% of the Differential Premium. The said amount, arrived at by making adjustment towards the payment already made, amounted to ₹ 27,69,400/- is deposited by the Petitioners in this Court. Therefore, they are entitled to withdraw the same with accrued interest if any. The Petitioners are permitted to withdraw the amount of ₹ 27,69,400/- deposited in this Court with accrued interest if any - Petition disposed off. - Writ Petition NO. 4191 OF 2015 - - - Dated:- 5-2-2020 - K.K. TATED AND SARANG V. KOTWAL, JJ. Mr. Rohan Cama And Mr. Anish Karande a/w. Rahul P. Jain i/b. Alpha Chambers, for the Petitioners. Ms. Shyamali Gadre a/w. Tanvi Doshi And Pradnyesh Lokegaonkar i/b. Little Co. for the Respondents. JUDGMENT PER SARANG V. KOTWAL, J. 1. Petitioner No.1 is a Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and set aside. 4. In view of these Minutes of Order, the only issue which remains to be decided, as per Clause-7 of those Minutes, is in respect of the amount of ₹ 27,69,400/-. Clause-7 reads thus : 7. This Petition shall be restricted only to the limited aspect of the liability, if any, of the Petitioner to pay the above sum of ₹ 27,69,400/- towards differential premium. The Petition, on this limited aspect of differential premium shall be disposed of finally at the stage of admission. Therefore we are only dealing with this issue specifically, as all other issues are taken care of, by those Minutes of Order. 5. The brief facts mentioned in the Petition are as follows: According to the Petitioners, Petitioner No.2 Mr.Bimal Joukani was on look out for expanding his business activities and for setting up an export oriented unit. On 30.6.2006, Petitioner No.2 made an application to the C.E.O. of Respondent No.1 for purchase of Amenity Plot No.9 in Tarapur MIDC. The application was signed by Petitioner No.2 and he had described himself as Partner of M/s. Lanvin Textile Mills. Respondent No.4 i.e. the Area Manager, MIDC Regional Office, issued an offer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically requested the Respondents to execute the lease deed in respect of the subject property in his favour as Proposer of Private Limited Company to be formed on a later date. It was further mentioned that Petitioner No.2 for the time being had dropped the proposal to form a Private Limited Company or Partnership Company. Petitioner No.2 also referred to the application made to the Respondents to point out that the application was made by him in his personal capacity and not as a Partner of the Partnership as was declared in the allotment order. 11. However nothing further transpired and, therefore, on 26.7.2011 Petitioner No.2 sent a letter to Respondent No.4 asking for possession of the subject property. 12. Vide letter dated 5.1.2012, Respondent No.4 addressed a reply to the Petitioner No.2s letter dated 26.7.2011. This reply was addressed to Petitioner No.2 and others described as Partners of M/s. Lanvin Textile Mills proposed Private Limited. In this letter dated 5.1.2012, Respondent No.4 clearly mentioned that the Corporation had decided to transfer the subject property in favour of Petitioner No.2 who was described as Promoter of the proposed Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to form the Private Limited Company within the stipulated period mentioned in the transfer order. 18. The Petitioners replied to this notice, but, the Respondents vide further notice dated 2.4.2015 rejected the explanation and informed the Petitioners that the Respondents would resume the possession of the subject property on 8.4.2015. This notice is also challenged by the Petitioners vide prayer clause (b) made in the Petition. After receipt of the notice dated 2.4.2015, the Petitioners have preferred the present Petition before this Court. 19. Respondent No.4 filed affidavit-in-reply on behalf of the Respondents. The affidavit-in-reply was affirmed on 22.12.2015. It was contended in the affidavit that Petitioner No.1 had no locus to file the Petition as Petitioner No.1 was neither an allottee nor had any interest in the subject property. The plot was allotted, vide allotment order dated 13.12.2006 in favour of three Partners of M/s. Lanvin Textile Mills Proposed Private Limited Company. According to the Respondents, the plot was subsequently transferred in favour of Petitioner No.2 in the capacity of the Promoter of a Private Limited Company and on the request of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06 issued by Respondent No.1 are annexed to this rejoinder. 23. During pendency of the Petition, the Minutes of Order dated 24.4.2019 were recorded, as mentioned earlier. The Respondents have filed additional affidavit dated 8.1.2020 mentioning how those Minutes of Order were not complied with by the Petitioners. However, at the time of arguments both the parties restricted their arguments to the issue of amount of ₹ 27,69,400/- deposited by the Petitioners in this Court. Both the parties are at liberty to take appropriate steps if the Minutes of Order dated 24.4.2019 are not complied with. 24. We have heard Shri Rohan Cama, learned Counsel for the Petitioners and Ms. Shyamali Gadre, learned Counsel for the Respondents. Both the learned Counsel, during their arguments, reiterated their respective stands taken in their pleadings. 25. Shri Cama, learned Counsel for the Petitioners relied on the circular dated 12.5.1998. The subject of this circular is in respect of transfer guidelines for industrial plots. The circular is based on the Board Resolution categorizing the transfers as formal transfer and non-formal transfer . According to Shri Cama, the petitioners cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other /brothers/sisters of the original allottees or in case original partners want to delete any of the persons (this does not include the legal persons) such transfer shall be a formal transfer and shall be permitted on recovery of the minimum transfer charges. 2. The transfer because of death i.e. by bequeath/ will / heirship/ shall be permitted on recovery of the minimum transfer charges. 3. All involuntary transfers including amalgamation, demergers etc. under the direction of the Competent Court / Tribunals /appropriate Government not being this nature of permission and shall be permitted on recovery of the transfer charges. 4. Transfer from promotor of the proposed private limited company to private limited company incorporated by the promotor, the existing procedure for the transfer from the promotor to the company incorporated by the promotor will continue. 5. Transfer from promotor of the Co-op. society to the Co.op. Society registered under the Maharashtra Co.op. Society Act shall be treated as a formal transfer and shall be permitted on recovery of the transfer charges. 6. Mere change in the name of the proprietory concern/ partnership firm, without chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be determined is, as to whether the Respondents were justified in demanding the payment of 30% Differential Premium when they had decided to transfer the subject property in favour of Petitioner No.1. In other words whether such transfer was in the nature of formal transfer or non-formal transfer. 30. The case of the Respondents is that Petitioner No.2 was not the allottee of the subject property, but, was the first transferee. In the light of this specific stand, the Respondents case appears to be that transferring of the subject property to Petitioner No.1 was not from the allottee, but was from the first transferee. 31. Though it is true that the offer letter dated 16.10.2006 was addressed to Petitioner No.2 and other partners of M/s. Lanvin Textile Mills and though the application was made by M/s. Lanvin Textile Mills, Petitioner No.2 vide letter dated 06.11.2006 requested the Respondents to correct the name of the Company in the allotment letter to read as Mr.Bimal Kalyandas Joukani (Petitioner No.2), Partner of M/s. Lanvin Textile Mills and a Proposer of a Private Limited Company . Inspite of this, the sanction for allotment of the subject property was accorded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .4.2012 i.e. within 60 days from 15.3.2012, as was directed. 37. In this background, it is clear that the Corporation was aware that the subject property was transferred from M/s. Lanvin Textile Mills to Petitioner No.2 as Promoter of the Proposed Private Limited Company. In this transfer, the Differential Premium, as demanded, was already paid to the satisfaction of the Corporation. 38. The Respondents, vide their letter dated 27.8.2013, informed Petitioner No.2 by addressing him as Promoter of Private Limited Company that the Respondents had decided to transfer the subject property in favour of Petitioner No.1 Company. However this time the Respondents demanded 30% Differential Premium amounting to ₹ 35,66,400/-, out of which an amount of ₹ 7,97,000/- was already paid. The Respondents, thus, demanded ₹ 27,69,400/-. The Petitioners are accordingly challenging this particular demand. 39. As mentioned earlier, vide letter dated 15.3.2012, the Respondents had agreed to transfer the subject property in favour of Petitioner No.2 describing him as Promoter of Proposed Private Limited. As per their directions, Petitioner No.1 Company was formed. Therefore, tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 20% Differential Premium from the first transferee i.e. Petitioner No.2, vide its transfer letter dated 27.8.2013. However, the letter dated 5.1.2012 regarding transfer of the subject property in favour of Petitioner No.2, does not make any reference to 30% Differential Premium. It does not even mention that amount of ₹ 7,97,000/- was only 10% of the Differential Premium. The said letter dated 5.1.2012 does not even mention that Petitioner No.2 will have to pay any other Differential Premium. 44. In view of the above discussion, it is clear that the transfer from Petitioner No.2 to Petitioner No.1 was in the nature of formal transfer and hence as per their own circular dated 12.5.1998, the Respondents are not entitled to demand and recover 30% of the Differential Premium. The said amount, arrived at by making adjustment towards the payment already made, amounted to ₹ 27,69,400/- is deposited by the Petitioners in this Court. Therefore, they are entitled to withdraw the same with accrued interest if any. Hence, the following order : ORDER i. The Petitioners are permitted to withdraw the amount of ₹ 27,69,400/- deposited in this Court with accrued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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