TMI Blog2012 (4) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... use charges, as indicated in the aforesaid impugned demand letter (Annexure P-17). Respondent's notice of 13th January, 2011 (Annexure P-20) calling upon the first petitioner to pay the amount of unearned increase and the misuse charges is also impugned in this petition. 2. The second petitioner in its Representation of 6th September, 2010 (Annexure P-18) had requested the respondent to withdraw the impugned demand and to process the conversion of the subject premises from leasehold to freehold by pointing out that the second petitioner was the wholly owned subsidiary of the first petitioner and that the Stainless Steel business now stood vested with the second petitioner in pursuance to the approval of the scheme and arrangement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Lessor in terms of the Perpetual Lease Deed of 28th September, 1993 between the respondent and the first petitioner and thus, the petitioners are liable to pay the unearned increase as it is apparent that the second petitioner-company had been floated by the first petitioner for the purpose of handing over the portion of its business to the second petitioner. According to the respondent, assignment of the rights in the subject premises by the first petitioner in favour of the second petitioner who is a separate juristic entity attracts the payment of unearned increase alongwith the misuse charges, as demanded. 5. In the rejoinder filed by petitioners, it is asserted that the petitioner companies are the part of the same group ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the de-merger order (Annexure P-4) that no new company was formed and to contend that no unearned increase is payable for getting the property converted from leasehold to freehold, reliance was placed on behalf of the petitioners upon the decision in W.P.(C) No. 2422/2006 Kiran Kohli vs. DDA, rendered on 30th January, 2008 and thus, it was urged that the impugned demand is liable to be quashed. 7. Learned counsel for the respondent drew the attention of this Court to clause 6(a) of the Perpetual Lease Deed (Annexure P-2) to assert that upon transfer of the property, 50% of the unearned increase is payable and the decision in Kiran Kohli (Supra), relied upon on behalf of the petitioners is clearly distinguishable as line of distinction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, thereby attracting clause 2(d) of Instructions (Annexure P-23) making 50% of unearned increase chargeable and clause 1(a) of the instructions (Annexure P-23) are inapplicable as they relate to partnership firms or private limited companies only and not to public limited companies like the petitioners. 10. Even clause 6(a) of the Perpetual Lease (Annexure P-2) between the first petitioner and the respondent prohibits the transfer of possession of the whole or any part of the commercial plot without previous consent of the respondent and stipulates that sale/transfer/assignment or parting with the possession of the commercial plot would attract 50% of the unearned increase and thus, the first petitioner is bound by it. It is quite elem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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