1. Heard Mr.Tushar Mehta, learned Senior counsel appearing with Mr.Harmish K. Shah for the applicant and Ms.Amee Yajnik, learned counsel appearing for the Official Liquidator for the respondent.
2. Both the learned counsel have taken this Court through the factual matrix arising out of this petition and have drawn attention of this Court to the documents which are placed on record.
3. The present application is filed wherein, in the summons for directions, following prayers are made:-
"(A) That the Official Liquidator be directed to handover the vacant possession of the premises of the applicant company situated at 9-A and 9-B, 9th Floor, Sambhaav House, Opp. Chief Justice's Bunglow, Bodakdev, Ahmedabad - 380015 to the applicant company.
(B) That the Official Liquidator be also directed to pay to the applicant arrears of rent of the aforesaid premises for the period from Feb 2009 onward till the possession of the premises is actually parted with (C) Or any other and further relief as the Hon'ble Court may deem fit."
4. Mr.Tushar Mehta, learned Senior counsel appearing with Mr.Harmish K. Shah for the applicant states that the applicant does not press prayer 'B' of the application.
5. It is the case of the applicant that the applicant is the owner of premises situated at 9-A and 9-B, 9th Floor, Sambhav House, Opp. Chief Justice's Bunglow, Bodakdev, Ahmedabad. It is the case of the applicant that the applicant, being owner of the said premises, vacant possession of the same may be handed over to the applicant. It is the case of the applicant that Advantage Global BPO Pvt.Ltd.
(in liquidation) (hereinafter referred to as the 'Company under liquidation') was occupied as a tenant on the basis of lease agreement entered into by the applicant-company with the Company under liquidation. The authorised person of the applicant-company, who happens to be the Managing Director of the applicant-company, has also filed an affidavit in support of this summons for direction.
6. It appears from the record that one Dotcad Private Limited filed Company Petition No.170 of 2009 against the Company under liquidation and this Court (Coram: M.R. Shah, J.) vide order dated 03.05.2010, passed order in the said company petition as well as in Company Petition No.255 of 2009 whereby, it has been held that the Company under liquidation has lost its substratum. The Company under liquidation is not in a position to pay its debt to its creditor and, therefore, the same is required to be wound up and was ordered to be wound up by the said order. In paragraph No.7 of the said order, it is observed as under:-
"In view of the above, both the petitions succeed and the respondent Company - ADVANTAGE GLOBAL BPO PRIVATE LIMITED is hereby directed and ordered to be wound up. The Official Liquidator attached with this Court is hereby appointed as Official Liquidator for the respondent Company. The Official Liquidator is hereby directed to take possession of the properties (movable and immovable) of the respondent Company along with its Bank Accounts, cash, Account Books etc. forthwith. The Official Liquidator shall submit its report within a period of three months. If required, he can take service of the official valuer for the purpose of preparation of the possession note etc. In the facts and circumstances of the case, there shall be no order as to costs."
7. On Official Liquidator being appointed, as aforesaid, the Official Liquidator took possession of the premises which belonging and/or in possession of the Company under liquidation. It appears from the record that the Official Liquidator took possession of the leased property situated at 9-A and 9-B, 9th floor, Sambhav House, Bodakdev, Ahmedabad in presence of the representative of the creditors, representatives of the Building Association and Government Approved Valuer on 24.02.2011.
8. As the applicant herein claims to be the owner of the premises in question, the present application is filed. It is the case of the applicant that the registered lease agreement was executed on 31.03.2008 between Pearl Stockholdings Private Limited and the Company under liquidation. It is the case of the applicant that under the said lease agreement, the period of lease was 9 years with three years lock in period from the date of execution of the lease agreement, which is part of the record of the present application. It appears from the record that Pearl Stockholdings Private Limited, the lessor, was also paid sum of Rs.4,36,800/- per month by the Company under liquidation as the lessee towards the lease rent. It appears that as per the said lease agreement, the Company under liquidation, as lessee, also paid an interest free security deposit equivalent to 4 months lease rent aggregating to Rs.17,47,200/-. It appears that it was also agreed between the parties through the said lease agreement that the lessee shall also pay monthly maintenance charges during the lease period at the rate of 2.50 per sq.fts. which comes to Rs.54,600/-. It is the case of the applicant that by registered deed of Reconveyance between Pearl Stockholdings Private Limited - lessor and the Company under liquidation - lessee dated 15.06.2009, possession of the leased premises situated on 9th floor of "Sambhav House" was handed back to the lessor with effect from 31.03.2009.
9. It is the case of the applicant that by order dated 29.06.2010 passed by this Court in Company Petition No.5 of 2010 and connected Company Petition No.6 of 2010, Pearl Stockholdings Private Limited - lessor was merged with Nila Infrastructures Limited - the present applicant. It is, therefore, the case of the applicant that the leased premises owned by the transferor company i.e. lessor thus, vested in the present applicant as per the said sanctioned amalgamation scheme.
10. It is the case of the applicant that as the Company under liquidation was not paying the monthly lease rent regularly, the same was requested by the applicant to vacant the premises being Nos.9-A and 9-B situated at 9th floor of Sambhav House. It is also the matter of record that vide notice dated 28.02.2011, the applicant called upon the Company under liquidation to give vacant possession of the leased premises being Nos.9-A and 9-B situated on the 9th floor of 'Sambhav House'. It is contended by the learned counsel for the applicant that the leased property is owned by the applicant company and the Official Liquidator is in possession of the said premises which is not being used by the Official Liquidator. The applicant has, therefore, prayed that the possession of the said property be handed over to the applicant. It is also submitted on behalf of the applicant that if the property in question is handed over to the applicant, the same shall not adversely affect the creditors or the shareholders of the Company under liquidation. The applicant, in support of the submissions, has also brought on record of this application panchnama dated 24.02.2011 whereunder, the Official Liquidator took possession of the premises in question. The applicant has brought on record photo copy of the lease deed dated 31.03.2008 as well as Deed of Reconveyance dated 15.06.2009. The applicant has also brought on record of this application, the order passed by this Court (Coram: K.A. Puj, J., as he then was) in Company Petition No.5 of 2010 connected with Company Application No.426 of 2009 whereby, the scheme of arrangement between Pearl Stockholdings Private Limited, the original lessor and the present applicant came to be sanctioned.
11. In response to the notice issued by this Court, the Official Liquidator filed report dated 12.07.2011. The Official Liquidator, in the said report, has submitted that the inventory and valuation report by the Government approved valuer is received and has also stated that the Official Liquidator has appointed M/s.Roshan Desai & Co. Advocates and Solicitors for verifying the title of the property. In fact, by the said report, in pursuance to the order dated 01.02.2011 passed in Official Liquidator's Report No.144 of 2010, this Court (Coram: Anant S. Dave, J.), has undertaken the exercise of inventory and valuation reports. The Official Liquidator thereafter, on receipt of the title report dated 16.08.2011 from M/s.Roshan Desai & Co. Advocates and Solicitors, has filed further report dated 14.12.2011. The Official Liquidator, in the said report, has observed thus:-
"2. Thereafter, Roshan Desai & Co., Advocates & Solicitors submitted a letter dated 16.08.2011 informing that they had perused copy of lease Agreement dated nil registered with the Sub Registrar of Assurances under Serial No.5464 on 31st March, 2008 and on perusal of the lease agreement reveals that premises on 8th Floor & 9th Floor chargeable carpet area 21,840 sq.ft. is permitted to be occupied and used as Licensee by Eleshwar Co-operative Housing Society Ltd. In the opinion of the said Advocate/Solicitor this is only an agreement and to have title to the said office Lease Deed should have been executed and registered. Only right available to the company in liquidation as licensee is to have a Lease Deed executed in favour of the lessee and in their opinion Company in liquidation has no title. A copy of the letter dated 16.08.2011 is annexed herewith and marked as " Annexure-B".
3. Thereafter, the Official Liquidator placed the said letter dated 16.08.2011 before this Hon'ble Court and the Hon'ble Court directed the Official Liquidator to place detailed title search report of the above Company (In Liqn.) In this connection, the Official Liquidator vide letter dated 12.09.2011 requested Roshan Desai & Co., Advocate & Solicitors to submit detailed title search report of the above Company (In Liqn.) on or before 19.09.2011. Roshan Desai & Co. vide letter dated 15.09.2011 informed the Official Liquidator that they have caused taken searches to be taken of the Revenue Records and Sub-Registrar of Assurance. Roshan Desai & Co. intimated it is not possible for them to furnish report by 19th September, 2011. A copy of letter dated 12.09.2011 and 15.09.2011 are annexed herewith and marked as "Annexure-C" (Colly.).
4. Thereafter, Roshan Desai & Co., Advocate & Solicitor vide letter dated 20.10.2011 submitted their report and on perusal of the report it is observed as under:-
After perusal of the records and mutation entry can opine that title to the land is of Sambhav Media Ltd., Eleshwar Bodakdev Co-operative Housing Society Ltd. or Pearl Energy & Infrastructures Ltd.
It is also stated that division of Eleshwar Co-operative Housing Society Ltd., Vejalpur and on the order dated 22nd December, 1999 passed by the Revenue Department, Gandhinagar.
However, It is clear that Nila Infrastructures Ltd. applicant is not the owner of the land and it is also not clear who is the owner of the construction. That there is no document or evidence to show how Pearl Stockholdings Pvt. Ltd. ownership."
12. The Official Liquidator has further brought on record the fact that even the Ex-Directors of the Company under liquidation were informed by the Official Liquidator under Rule 130 of the Companies (Court) Rules, 1959 and in the said report, in paragraph No.6, the Official Liquidator has mentioned as under:-
"6. That, the Official Liquidator most respectfully submits that the Official Liquidator vide letter dated 06.07.2010 and 22.02.2011 informed the Ex-Directors of the Company (In liqn.) to record their statement with the affiars of the Company (In liqn.) under rule 130 of the Companies (Court) Rules, 1959. In view of the said letter dated. 22.02.2011, one of the Ex-Director, Dr. Anil Kumar vide letter dated 28.02.2011 requested the Official Liquidator to record his statement with affairs of the Company (In liqn.) under rule 130 of the Companies (Court) Rules, 1959 on 04.03.2011. Accordingly, the Ex-Director, Dr. Anil Kumar remained present on 04.03.2011 in the office of the Official Liquidator for recording his statement under rule 130 of the Companies (Court) Rules, 1959 and on perusal of statement of Dr. Anil Kumar on point no. 4 it was stated that the office premises of the Company (In liqn.) situated at 9th Floor, Sambhav House, Judges Bungalow Road, Ahmedabad was rented property and no other details pertaining to the ownership of the aforesaid office reflects from the statement under rule 130 of the Companies (Court) Rules, 1959 of Dr. Anil Kumar, one of the Ex-Directors of the Company (In liqn.), which read as under:
"Regd.
Office of the Company was situated at 9th Floor, Sambhav House, Judges Bungalow Road, Ahmedabad. It was rented property. I don't have any knowledge about the rent."
A copy of the letters dated 22.02.2011, 28.02.2011 and statement recorded under rule 130 of the Companies (Court) Rules, 1959 of Dr. Anil Kumar as "Annexure-F" (Colly.)"
13. In response to the above report so submitted by the Official Liquidator, the authorised person of the applicant-company, by further affidavit, has brought on record further documents along with title report obtained by the applicant from M/s.M.R. Bhatt & Associates Advocates. The applicant has, in its further affidavit, contended that the ownership of the transferor company in the aforesaid property i.e. Pearl Stockholdings Private Limited has been transferred and vested in the applicant-company by virtue of the order passed by this Court in Company Petition No.5 of 2010 connected with Company Application No.426 of 2009 dated 29.06.2010 as mentioned hereinabove. On receipt of the aforesaid material, this Court called upon the Official Liquidator to file further report and accordingly, the Official Liquidator filed further report dated 21.03.2012. The Official Liquidator in the said report dated 21.03.2012, in pursuance of the order passed by this Court, in paragraph No.3, has stated as under:-
"3. That, the Official Liquidator most respectfully submits that on perusal of the documents submitted by the applicant it is observed as under:
The registered lease agreement dated 31st March, 2008 executed between Pearl Stock Holdings Pvt. Ltd. as lessor and Advantage Global BPO Pvt. Ltd. as lessee in respect of 8th and 9th Floor and the said agreement is registered at serial no. 5464. A copy of lease agreement dated 31.03.2008 between Pearl Stock Holdings Pvt. Ltd. and Advantage Global BPO Pvt. Ltd. is annexed and marked as "Annexure-A".
That vide order dated 29.06.2010 passed by the Hon'ble High Court in Company Application No. 426 of 2009 wherein as per scheme of arrangement Pearl Stock Holdings Pvt. Ltd. was merged into Nila Infrastructures Ltd. Thus the ownership and possession of the premises being Left wing of Ninth Floor admeasuring 4750 sq. fts. and Right wing of Ninth Floor admeasuring 4750 sq. fts. in the building Sambhav House was transferred to Nila Infrastructures Ltd. All the assets and liabilities of Pearl Stock Holdings Pvt. Ltd. are transferred in favour of Nila Infrastructures Ltd. on the basis of the said amalgamation order. A copy of order dated 29.06.2010 passed by the Hon'ble High Court in Company Petition No. 5 of 2010 in Company Application No. 426 of 2009 is annexed and marked as "Annexure-B".
The ownership of land belongs to Sambhav Media Ltd. (formerly known as Pearl Energy & Infrastructures Ltd.) which is also reflected in revenue records and the ownership of construction of F.S.I. rights from 2nd floor to 9th floor admeasuring 3519 sq. mtrs. came into the hands of Eleshwar Bodakdev Commercial Coop. Housing Ltd. and the ownership of 9th Floor came into the hands of Nila Infrastructures Ltd. by virtue of being member of society. A copy of extract of 7/12 and order dated 22.12.99 from Revenue Department, Order No. 375-379/00 dated 13.03.2000 from Jilla Panchayat Office are annexed herewith and marked as "Annexure-C (Colly.)".
The left wing of Ninth Floor admeasuring 4750 sq. fts. and Right wing of Ninth Floor admeasuring 4750 sq. fts. in the scheme Sambhav House, Eleshwar Bodakdev Commercial Coop. Housing Society Ltd. constructed on S. No. 338, T. P. Scheme No. 1/B, FP No. 190/paiki (Western Side) of mouje Bodakdev, Sub-District Ahmedabad - 3 (Memnagar) & District Ahmedabad is of the ownership of Nila Infrastructures Ltd. A copy of the allotment certificate dated 04.08.2001 and share certificate no. 34 are annexed herewith and marked as "Annexure
- D" (Colly.).
In view of the facts and circumstances stated herein above, this report is submitted in furtherance to the reports dated 18.07.2011 and 14.12.2011 for such orders and directions as may be considered just and appropriate by this Hon'ble Court."
14. Considering the aforesaid factual background, it transpires that initially, the Company under liquidation entered into a lease agreement with Pearl Stockholdings Private Limited, who happened to be the owner of the premises situated on 8th floor as well as the premises situated on 9th floor being Office Nos.9-A and 9-B. By registered lease agreement dated 31.03.2008, Pearl Stockholdings Private Limited - original lessor, came to be merged with Nila Infrastructure Limited, the present applicant on such scheme of arrangement being approved by this Court in Company Petition No.5 of 2010 connected with Company Application No.426 of 2009 by order dated 29.06.2010.
15. Considering the report of title submitted by the Official Liquidator obtained from M/s.Roshan Desai & Co. Advocates & Solicitors as well as the copy of the title report dated 04.05.2000 given by M/s.H.Desai and Company and the opinion of title dated 04.01.2012 rendered by M/s.M.R. Bhatt and Associates Advocates, the applicant is the owner of the 9th floor in the premises in question. It appears that the ownership of the land belongs to Sambhav Media Limited (formerly known as Pearl Energy and Infrastructures Limited), which is evident from village Form No.7/12. It further appears that the ownership of construction of F.S.I. rights from 2nd floor to 9th floor is of one Eleshwar Bodakdev Commercial Co-operative Housing Society Limited and, by an allotment certificate dated 04.08.2001, the said society has allotted the premises in question i.e. Office Nos.9-A and 9-B being left Wing of 9th floor admeasuring about 4750 sq.fts. approximately to Pearl Stockholdings Private Limited, the original lessor. The share certificates have also been accordingly issued by the said society in the name of Pearl Stockholdings Private Limited. It further appears that by Entry dated 24.01.2011, in the records of the said society i.e. Eleshwar Bodakdev Commercial Co-operative Housing Society Limited, the membership has been transferred in favour of the present applicant.
16. It also bornes out from the record that the Company under liquidation was never the owner of the premises in question.
17. In view of the above, the applicant being the owner of the premises in question, is entitled to get back the possession of the same.
18. In view of the statement made by the learned Senior Counsel appearing on behalf of the applicant-company, no further directions as regards payment of arrears of rent from February, 2009 onwards, are required to be issued.
19. Resultantly, the application is partly allowed. The Official Liquidator is directed to hand over peaceful and vacant possession of the property being Office Nos.9-A and 9-B, 9th Floor 'Sambhav House', opposite Chief Justice's Bungalow, Bodakdev, Ahmedabad to the applicant-company.
(R.M.CHHAYA, J.) Hitesh Top