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COMA/371/2009 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
APPLICATION No. 371 of 2009
In
COMPANY
PETITION No. 157 of
1995
=========================================================
DHAIRYASINH
P RAJDA - MANAGING OWNER - Applicant(s)
Versus
O
L OF M/S AHMEDABAD MANUFACTURING & CALICO PTG MILLS CO LTD -
Respondent(s)
=========================================================
Appearance
:
MR
PALAK H THAKKAR for
Applicant(s) : 1,
MS AMEE YAJNIK for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 09/11/2011
ORAL
ORDER
1.
The applicant has taken out preset application seeking below
mentioned relief/s:-
“1.
To please direct the official liquidator to return the peaceful and
vacant possession of Godown No.1 bearing house No.6/B, Old Hanuman,
2nd Cross Lane, Kalbadevi, Mumbai-400 002 as the said
property is not used by company since December, 1994 and the company
and the liquidator are in arrears of rent till today.
2.
Please direct the liquidator to pay the rent to the tune of Rs.570/-
p.m. with effect from 1.12.1994 till today and continue to pay the
same till the vacant and peaceful possession of the subject property
is returned to the applicant. The arrears of the rent may be directed
to be paid with 12% interest.
3.
Your Lordships may be pleased to quash and set aside the order dated
10.7.2009 and further be pleased to direct the OL to remove the seals
already applied on the premises of the present applicant on
10.7.2009.
4……….”
2.
The relief is claimed on the premise that the property in question is
of the ownership of the applicant and it was given on rental basis to
the company (in liquidation). It is also claimed that since many
years the company was not putting the property in question to any use
and the company (in liquidation) was also not paying any amount
towards rent as well. It is claimed that in such facts when the OL
came to be appointed, the petitioner addressed a letter to the OL
claiming back, the possession of the property in question. It is also
claimed that though the property was in the hands of the company (in
liquidation) on rental basis, the OL, instead of handing over vacant
and peaceful possession to the applicant (who claimed to be owner of
the property in question), visited the site and, in pursuance of the
winding up order, he formally took over the possession of the
property in question in his capacity as OL.
3.
On the claim that the property in question is of the applicant’s
ownership and was in the hands of the company (in liquidation) only
on the rental basis, the applicant has claimed back the possession of
the property in question and the respondent OL has filed report
stating inter alia that on perusal of the record, which became
available after taking possession it is not possible to ascertain the
veracity of the claims made by the applicant and / or to ascertain as
to whether property in question was of the ownership of the company
or as claimed by the applicant of the ownership of the applicant. It
is claimed that it is also not possible to ascertain as to whether
rent was paid or not. Any document evidencing that the property in
question was taken only on rental basis and not on lease basis is
also not found from the available record. The OL has also claimed
that it is not possible to ascertain as to whether the property was
with the company on perpetual lease basis or purely rental basis.
4.
In view of the report filed by the OL, it appears appropriate to pass
below mentioned direction requiring the OL to take necessary steps so
as to ascertain relevant factual aspects in light of which
appropriate order can be passed and if the applicant’s claim is found
to be justified then appropriate order on that count also can be
passed. Therefore, below mentioned direction are issued:-
(a)
the OL shall also ascertain as to whether the property in question is
of the company’s ownership or not. For the said purpose the OL may
take steps to verify relevant revenue record from the office of
revenue authority or verify the facts from the municipal record,
tax-receipt etc. to ascertain the ownership of the property in
question.
(b)
the OL shall verify as to whether the property in question was
already in the hands of the company (in liquidation) on perpetual
lease basis or not or whether it was in the hands of the company (in
liquidation) or only on rental basis.
(c)
the OL is permitted to take assistance of the office of OL of Mumbai
for the aforesaid purpose and ascertain, on verification of the
revenue record, municipal record etc. as to whether there is any
material which would establish and clarify the issue regarding
ownership of the property in question.
(d)
if, on such investigation it is found that the property in question
is actually of the ownership of the applicant and not of the company
(in liquidation) then the OL shall further examine as to whether
there was any perpetual lease executed or not.
(e)
If the OL is satisfied on the count that there is no lease deed
executed between the parties and the property in question was taken
only on the rental basis then appropriate report to that effect shall
be filed in light of which further appropriate order as requested for
by the applicant can be passed.
(f)
the applicant is permitted to give assistance to the office of OL,
as may be required from the office of OL, in the process of
ascertaining the factual aspects.
The
OL shall take necessary steps as per the aforesaid directions within
period of 5 weeks i.e. by 9.12.2011 and file appropriate report by
13.12.2011.
S.O.
to 14.12.2011.
(K.M.THAKER,J.)
Suresh*
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