Heard Ms. Yajnik, learned advocate for the applicant - OL, and Mr. Pahwa, learned advocate for the respondent - M/s. Thakorji Dyeing & Printing Mills Pvt. Ltd.
2. The applicant - OL has taken out a report dated 7.12.2011, which is registered as OLR No.281 of 2011, seeking below mentioned direction:-
"7. That, the Official Liquidator most respectfully submits that draft deed of assignment of lease hold rights in different than deed of assignment of lease hold rights approved by this Hon'ble Court. M/s. Jani & Co., Solicitor & Advocates, Mediators and Arbitrators has prepared draft deed of assignment of lease hold rights in their language, style and format. However, facts are common in respect to area, description and location of property in question in both draft deed of assignment of lease hold rights. Therefore, this Hon'ble Court may be pleased to permit the Official Liquidator to execute the deed of assignment of lease hold rights modified and solicited by the M/s. Jani & Co., Solicitor & Advocates, Mediators and Arbitrators in place of draft of deed of assignment of lease hold rights approved by this Hon'ble Court vide order dated 31.3.2011."
3. After considering the documents on record and submissions made by learned advocate for the OL, order dated 23.12.2011 was passed, which reads thus:-
"1. The Official Liquidator has taken out present report dated 07/12/2011 seeking further orders and directions in connection with the sale deed to be executed in pursuance of the order dated 08/10/2010 where by sale was confirmed and also in pursuance of the order dated 31/03/2011. From the tenure of the report it appears that the draft of the sale deed is produced for approval and sanction to execute the sale deed on the basis of the draft.
2. However, on perusal of the document which is placed on record, particularly at page-15, 17, 19, 21, 23 and 25 of the report, it appears that the document is already stamped.
3. Therefore, it is considered appropriate that notice to the opponent be issued who shall offer necessary clarification.
4. The Official Liquidator shall also reconfirm the position and clarify as to whether the deed is already executed and if so, how it is executed without consent and approval of the Court.
5. Issue Notice making it returnable on 24/01/2012."
4. Ms.
Yajnik has submitted that in pursuance of the said order, the OL has filed further report dated 10.1.2012, which is at page-28 and 29. In the said report, in para 1, 2 and 3, the OL has submitted that:-
"(1) That this Hon'ble Court vide order dated 23.12.2011 passed in Official Liquidator's Report No.281 of 2011 directed the Official Liquidator to reconfirm the position and clarify as to whether the deed is already executed and if so, how it is executed without consent and approval of the Hon'ble Court.
(2) In this connection the Official Liquidator most respectfully submits that the Official Liquidator has not executed the sale deed so far in favour of successful purchaser. It is further respectfully submitted that the sale deed will be signed / executed by the Official Liquidator after the draft sale deed is approved by this Hon'ble Court for execution.
(3) This report is submitted in compliance of the order dated 23.12.2011 for such further orders and directions as may be considered just and appropriate by this Hon'ble Court."
5. So as to consider the aspects involved, it is necessary to take into account the relevant factual backdrop.
5.1 It appears that lease hold rights of certain property (described in the advertisement as lot No.III) were sold during auction conducted in the Court wherein one M/s. Jai Ambe Filaments Pvt. Ltd. emerged as the highest bidder. Consequently, vide order dated 8.10.2010 in OLR No.70 of 2010, the Court confirmed the sale of rights in respect of the lot No.III, i.e. lease hold land admeasuring about 5600 sq. mts. situate at plot Nos.281 and 282, GIDC Estate, Road No.2, Sachin, District Surat for a sum of Rs.3.75 crores.
It also appears that by the said order, the Court had permitted the successful bidder to appoint a nominee. Resultantly, the said successful bidder, i.e. M/s. Jay Ambe Filaments Pvt, Ltd. appointed M/s. Thakorji Dyeing & Printing Mills Pvt. Ltd. (present respondent) as its nominee.
Thereafter, in pursuance of the sale confirmation order, a Deed of "Assignment of Lease Hold Rights" [hereafter referred to as the "deed"] was required to be executed by the OL upon receipt of the total sale consideration.
6. It is not in dispute that the total sale consideration is paid by the original bidder and the OL has received the total amount of sale consideration.
7. Since the deed (Deed of Assignment of Lease Hold Rights) was to be executed, the OL had forwarded the draft of the "deed" to the advocate on panel, who seems to have approved it vide his opinion dated 7.3.2011. This aspect is mentioned by the OL in para-3 of the report, which read thus:-
"3. Thereafter, M/s. Thakorji Dyeing & Printing Mills Pvt. Ltd., vide their letter dated 25-01-2011 submitted in the office of the Official Liquidator a draft of conveyance deed, which was forwarded to learned panel advocate Shri Nitin Mehta vide letter dated 07-02-2011 for vetting and his approval. The office of the Official Liquidator has received the draft deed of assignment of lease hold rights duly approved and amended by the learned panel advocate on 07-03-2011."
7.1 It appears that subsequently, in view of certain orders passed by the Court, the draft of the "deed" was forwarded to the Solicitor and Advocates namely, M/s. Jani & Co. These aspects are mentioned by the OL in para 4 to 6 of the report, which read thus:-
"4. That, the Official Liquidator further most respectfully submits that after receiving duly approved and amended draft deed of assignment of lease hold rights from the learned panel advocate of the Official Liquidator, the Official Liquidator has filed OLR No.42 of 2011 before the Hon'ble Court for approval of draft of deed of assignment and permit the Official Liquidator to execute the deed of assignment in favour of purchaser. In this connection, this Hon'ble Court vide order dated 31-03-2011, granted the prayer in terms of paragraph 5(A) of the report. A copy of the draft of deed of assignment of lease hold rights and order dated 31-03-2011 are annexed hereto and marked as annexure - "B".
5. That, the Official Liquidator further most respectfully submits that this Hon'ble Court has directed the Official Liquidator vide order dated 30-06-2011 passed in OLR No.79 of 2011 in the matter of M/s. Jupitor Cement Industries Ltd. (In Liqn.) to get draft sale deed examined through attorney dealing with documentation work and place on record certificate certifying as to whether any modifications are required so as to protect interest of office of Official Liquidator or the draft sale deed is appropriate and can be executed without modification. In this connection, the Official Liquidator has issued a letter dated 27-072011 to M/s. Thakorji Dyeing & Printing Mills Pvt. Ltd. A copy of letter dated 27-07-2011 is annexed hereto and marked as Annexure - "C" to this report.
6. That, the Official Liquidator most respectfully further submits that in response to the said letter M/s. Jani & Co., Solicitor & Advocates, Mediators and Arbitrators submitted a certificate dated 28-09-2011 along with draft deed of assignment of lease hold rights on behalf of their client M/s. Thakorji Dyeing & Printing Mills Pvt. Ltd. A copy of the certificate of M/s. Jani & Co., Solicitor & Advocates, Mediators and Arbitrators dated 28-09-2011 along with draft deed of assignment of lease hold rights are annexed hereto and marked as Annexure - "D"."
8. At this stage, it is pertinent to note that before the draft of the Deed of Assignment of Lease Hold Rights was forwarded to M/s. Jani & Co., the draft of the "deed" on the basis of approval by the panel advocate order dated 31.3.2011 was passed, however, in view of the orders passed in OLR No.79 of 2011, the "deed" was forwarded to M/s. Jani & Co for verification and vetting.
8.1 It appears that the said M/s. Jani & Co. has under its covering letter dated 28.9.2011 approved the draft of Deed of Assignment of Lease Hold Rights with certain modifications.
9. On earlier occasion, when the photocopy of the draft of the "deed" was taken into consideration, certain confusion arose because stamps of seal were put on the pages of the photocopy of the "deed". Therefore, the above referred order dated 23.12.2011 was passed. However, the said aspect is now clarified by the OL in the report dated 10.1.2012.
10. Having regard to the aforesaid aspects and the fact that the Solicitor has vide/under the letter-certificate dated 28.9.2011 approved the draft of the "deed" i.e. the Deed of Assignment of Lease Hold Right, the request made by the OL in para-7 of the report dated 7.12.2011 read with para 1 to 3 of the report dated 10.1.2012 is granted for the draft/document which placed on record of present petition at page 14 to 27 under the letter-certificate dated 28.9.2011, on condition that the OL shall cause inclusion of clause in the said draft of the "deed" clarifying that the terms and conditions contained in the advertisement, sale confirmation order and the tender document, shall continue to be binding to the parties and shall form part of the Deed of Assignment of Lease Hold Rights and shall be deemed to have been incorporated in the Deed of Assignment of Lease Hold Rights as if it is part of it. The OL shall also cause another clause to be added verifying and stipulating that the terms and conditions mentioned in the Deed of Assignment of Lease Hold Rights are in addition to and not in exclusion of the terms and conditions contained and mentioned in the advertisement, tender document and sale confirmation order.
On the aforesaid condition, the request of the OL is granted. Directions, accordingly, are issued hereby and present report, consequently, stands disposed of.
(K.M.Thaker, J.) kdc Top