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TMI Blog2013 (10) TMI 1592X X X X Extracts X X X X X X X X Extracts X X X X ..... the land bearing Survey Nos. 482 & 483 situated at Jatalpur Road, Baroda may not be transferred or alienated or disposed of by opponent No.1, Official Liquidator, Gujarat High Court, and also for the prayer to hand over vacant and peaceful possession of the land in question (known as Shree Ambica Mills Ltd. (in liquidation) to the applicants on the grounds stated in the Application. It is also prayed that opponent No.1 may be directed to pay to the applicants leasehold rent in respect of the land in question as prayed in the Company Application/Judges' Summons. 2. Heard learned counsel Shri AL Shah appearing with learned advocate Shri AB Munshi for the applicants. Learned counsel Shri Shah has referred to the papers and the affidavit-in-reply to support the Judges' Summons contending, inter alia, that the land in question was in fact given to Shree Ambica Mills Ltd. (in liquidation) by an agreement of lease executed on 14.8.1942 between the father of the applicants late Shri Jasbhai Jivabhai Patel and mother Smt. Chanchanbai, widow of Jivabhai Maturbahi and late Shri Motibhai Kalidas Patel and Shri Jagdish Mills (now known as Shree Ambica Mills Ltd. (in liquidation). Learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponent No.1, Official Liquidator, is without power or jurisdiction or authority, the subsequent steps taken would be a nullity and without jurisdiction. He submitted that therefore the holding of auction for transfer of such leasehold rights in favour of respondent No.2 is bad and without any authority or jurisdiction ab initio. He further submitted that therefore the order passed by the court is also required to be considered in background of the facts and no one can claim any right and therefore the present application has been filed. 5. Learned Sr. Counsel Shri SN Soparkar appearing with learned advocate Shri AS Vakil for respondent No. 2 referred to the papers and submitted that the prayer in the present application may be considered and whether such a prayer could be granted in light of the facts stated in the affidavit-in-reply. He pointedly referred to the affidavit-in-reply and submitted that as stated in detail in the affidavit-in-reply, the sequence of events and dates pertaining to devolution of leasehold rights in respect of land bearing Survey Nos 482 & 483 (the land in question) which are subject-matter of the Company Application are required to be considered. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of a period of 51 years the lesser and lessee through their representatives and Sarpanch can determine a fair and reasonable rent. He therefore submitted that by such clause what has been provided is the method of determination of rent and the interpretation which is sought to be made limiting the period of lease to contend that after the period of lease has expired, it would revert back to the original owner, the applicants herein, is thoroughly misconceived. 7. Learned Sr. Counsel Shri Soparkar, therefore, submitted that the contentions are two-fold. The first contention he has raised is that the lease of the land in question has been in perpetuity and once it is a perpetual lease it would go with the same rights and Shree Ambica Mills Ltd (in liquidation) would have the same rights and therefore the Liquidator had every right, title, interest to have the auction for transfer and assignment of such leasehold rights in favour of respondent No. 2. Learned Sr. Counsel Shri Soparkar further submitted that the prayer in the Judges' Summons are required to be considered in background of these facts and the sequence of events not only qua the history and background of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed, at the cost of repetition, that the order of the Company Judge granting sanction to the transfer/assignment of the leasehold rights in favour of opponent No.2 by the Official Liquidator, opponent No. 1, of Shree Ambica Mills Ltd. (in liquidation) would hold the field and so long as the order is not set aside, the applicants cannot claim any such prayer in spite of approval of such transfer and assignment of leasehold rights in favour of opponent No.2. 10. Learned Sr. Counsel Shri Soparkar has referred to and relied upon the judgment in the case of Sudbrook Trading Estate Ltd. v. Eggleton and ors., [1982] 3 All ER 1, to support his submission that the lease in perpetuity cannot be converted into a lease of temporary period. He therefore submitted that the same analogy has been applied by the Hon'ble Apex Court in a judgment in the case of Smt. Clause-Lila Parulekar v. Sakal Papers Pvt. Ltd. and ors., reported 124 Company Cases 685. 11. Learned Counsel Shri Roshan Desai for the Official Liquidator, opponent No.1, submitted that he would support the submissions made by learned Sr. Counsel Shri Soparkar and has only supplemented the submissions referring to the papers . He has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lease has expired in December 1997 and the facts of the judgment relied upon in the English judgment were different and therefore the English judgment would not be applicable. Again, learned counsel Shri Shah submitted that the Official Liquidator is like a statutory tenant and has a limited right of possession, but he cannot transfer such possession. He emphasized that the law of tenancy is not changed merely because the company has gone into liquidation. He therefore submitted that what has been observed in the judgment in the case of Legal Heirs of Deceased Fakir Chand Ambaram Patel v. OL of Amruta Mills Limited and ors., reported in 2002(3) GLH 367, is with regard to assignment of right on expiry of the period of lease which is not applicable to the facts of the case. He again referred to the lease deed and pointedly referred to clause 11 to support the submission that it would indicate that the lease was not for perpetuity and pointed out that all the clauses particularly clauses 9 and 11 have to be read together and if the lease was in perpetuity, then clause 11 would be redundant. 14. In view of the rival submissions made at length referring to the aspects of the lease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkar with regard to the execution or validity of the said lease deed. It is stated to have been executed unilaterally and not signed by Shree Jagdish Mills Ltd. The present company Shree Ambica Mils Ltd. (in liquidation) therefore would have the same right, title and interest and would be entitled to have the transfer and assignment of the leasehold rights in favour of respondent No.1. It is required to be mentioned that pursuant to the order of the High Court (Company Judge) it was advertised and the assignment of leasehold rights in the land have been made as per the order passed in Company Application No. 187 of 2004 in Company Petition No. 66 of 1988 dated 6.5.2005 approving and accepting the transaction of such assignment of leasehold rights in favour of opponent No. 2. 18. Therefore, as rightly contended, when such an order of assignment of leasehold rights is holding the field, as it has not been a subject-matter of any appeal, such a prayer cannot be granted which will have the effect of setting at naught what has been approved earlier by the High Court (Company Judge). Again, it is required to be mentioned that whether such an issue could be considered in background of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, subject to the revision of rent that may be mutually agreed, it has been accepted that the lessee would continue to remain in possession and the leasehold rights will continue. This itself indicates about the intention of the parties to create perpetual leasehold rights with some provision for revision of rent on expiry of the period of 51 years. Clause 11, which has also been referred to by learned counsel Shri Shah, refers to the probable other possibility that in the event the lessee may not agree to the revision of rent he may be then have to be vacated. In that eventuality, whatever the construction or development that may have been made would be cleared. Again, clause 14 refers to the assignment of the leasehold rights by gift or sale which would be accepted by the heirs of the parties meaning thereby again it has an indication of perpetual lease. 21. Therefore, considering the sequence of events, the nature of lease that it has all throughout been perpetual and even considering the lease deed dated 14.8.1942 which has been much emphasized by learned counsel Shri Shah, it cannot be interpreted that it was for a limited period of 51 years and the property in ques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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