Whether by the alleged action the respondents-Companies directly or
indirectly had transferred or parted with their interest/benefit under
their respective agreements for licence.
Whether the respondents-Companies violated the terms as contained in Clause
4(h) of agreement and Clause 3(p)of their lease deed and
Whether the respondents-Companies are liable to pay transfer fee for
alleged transfer of its own interest.=
In the present case it has not been denied that respondent company
M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd.
are family held companies of the same family having common
Directors/Promoters. Pursuant to the order of amalgamation by the High
Court the plot of land in question namely A-9, A-10, Industrial Area Unnao
Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the
respondent company M/s Super Tannery (India) Ltd. As per Amalgamation
Scheme, all the property, rights and power of Super Agro Tech. Ltd., having
its office at 184/170, Jajmau Kanpur was transferred without further act or
deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order
of the Court the premises in question was transferred in favour of the
other Company.
In view of the aforesaid facts as noticed in each case, we hold
that the appellant rightly issued notice demanding transfer fee from each
of the respondents and there was no reason for the High Court to interfere
with the same.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2731 OF 2005
U.P. STATE INDUSTRIAL DEV.CORPN. LTD. APPELLANT
VS.
MONSANTO MANUFACTURES (P) LTD. & ANR. RESPONDENTS
WITH
C.A.NO.1310 OF 2006
C.A.NO.1318 OF 2015 (@SLP(C) NO.16404 of 2006)
C.A.NO. 1319 OF 2015 (@SLP(C) NO.5838 of 2008)
J U D G M E N T
Leave granted in SLP (C) No.16404 of 2006 and SLP(C) No.5838 of
2008.
2. The Government of Uttar Pradesh acquired land in various districts
and conveyed the same to the appellant-U.P. State Industrial Development
Corporation (hereinafter referred to as, 'the Corporation' for short) for
the purpose of setting up industrial area. The Corporation thereafter
divided the said land
into plots for leasing the same to industrial units. The respondents-
Companies, applied to the appellant-Corporation for grant of lease. On
receiving part premium of the plot, the appellant executed an agreement for
licence and later executed lease deed in favour of the respondents-
Companies. Later the appellant-Corporation made an allegation that the
respondents-companies' share holders transferred their company/their shares
to new shareholders without the consent of appellant-Corporation, which
amounted to transfer of interest, for which transfer levy is required to be
deposited. Demand notices were issued by the appellant-Corporation to the
respondents-Companies. Those demand notices were challenged by the
respondents-Companies in different writ petitions or suits which were
allowed by the Division Bench of the High Court of Judicature at Allahabad
by impugned judgments.
3. In the aforesaid cases the High Court held that unless the
respondents-Companies transfer its right in the plot in question in favour
of another legal entity, there is no question to apply clause 4(h) of the
Agreement for licence. The High Court further held that mere change in
shareholders or Directors, does not change legal entity of the Company and
as such it continues unchanged.
4. The questions that arise for our consideration in these appeals
are:
Whether by the alleged action the respondents-Companies directly or
indirectly had transferred or parted with their interest/benefit under
their respective agreements for licence.
Whether the respondents-Companies violated the terms as contained in Clause
4(h) of agreement and Clause 3(p)of their lease deed and
Whether the respondents-Companies are liable to pay transfer fee for
alleged transfer of its own interest.
5. The facts leading to the cases are as follows:-
Monsanto Manufactures Private Ltd.(A Company registered under the Companies
Act, 1956)
The respondent-Company applied to the appellant-Corporation for
grant of lease of plot of land bearing no.38/1-A situated in Sahibabad
Industrial Area, Site No.4 of Tehsil and District Ghaziabad admeasuring
14,533 square yards for the purpose of constructing an industrial unit.
The appellant-Corporation after receiving part premium of the plot land
executed an agreement for licence on 12th June, 1978 in favour of the
respondent-Company. The possession of the land was given on 12th June,
1978. After construction of the building of the factory, the respondent-
Company and the appellant-Corporation executed a deed of lease on 5th
September, 1979 for a period of 90 years. Later, the appellant-Corporation
vide letter dated 12th April, 1994 asked the respondent-Company to provide
the list of its Directors and shareholders duly certified by the Chartered
Accountant. The same was furnished by the respondent-Company to the
appellant-Corporation on 7th May, 1994. According to the appellant-
Corporation the respondent-Company changed the Directors and shareholders
without prior permission and consent of the appellant-Corporation and since
the respondent-Company was purchased by the present Directors from the
previous Directors. The appellant-Corporation by letter dated 27th May,
1994 asked for details in order to take necessary action in accordance with
the terms of the lease deed. The respondent-Company categorically denied
the allegations levelled by the appellant-Corporation by their letter dated
27th September, 1994.
6. By letter dated 1st October, 1999 the appellant-Corporation
demanded Rs.25,51,781/- from respondent-Company towards transfer levy
charges as the original shareholders of the respondent-Company transferred
their entire shareholding and interest to the new shareholders and there
was change in the Directors of the respondent-Company. According to the
appellant such change makes the shifting of the controlling interest of the
respondent-Company and transfer levy for the same was demanded from the
respondent-Company as per the rules of the Corporation. The Company
submitted its reply vide letter dated 8th December, 1999 and reiterated its
earlier stand to the effect that there is no breach of any terms of the
lease deed as no transfer or assignment or sale of premises in question has
been made. However, it was not accepted by the Corporation, who sent
another reminder dated 13th January, 2000 asking the Company to pay a sum
of Rs.25,51,781/- towards transfer levy charges.
The aforesaid demand notice was challenged by the respondent-
Company before the High Court of Allahabad which by impugned judgment dated
11th May, 2004 allowed the writ petition.
U.P. Twiga Fiberglass Limited (A Company registered under the Companies
Act, 1956)
7. The appellant-Corporation executed an agreement with respondent-
Company followed by lease deed dated 27th May, 1977 by which the
Corporation leased plot nos.9 and 23-A admeasuring approximately 1,10,926
square meters of land situated at Sikandrabad Industrial Area, District
Bulandshahr, Uttar Pradesh to the respondent-Company. The lease was
executed for 90 years. In the year 1994, the respondent-Company suffered
heavy losses to the tune of Rs.42 crores. Therefore, the respondent-
Company sold almost its entire shares including shares of its promoters and
shares lying with financial institutions to a foreign company known as
"Rotar India Ltd.". As entire shares of the respondent-Company transferred
to Rotar India Ltd., the promoters of the said Company were replaced by new
promoters/Directors.
8. According to the appellant-Corporation, in view of the above
disposal of controlling interest in the venture of the existing allottee,
they were liable to pay transfer levy as per Clause 6(f) of the guidelines
of the Corporation pertaining to reconstitution and transfer.
9. The Corporation vide its letter dated 26th April, 1995 requested
the respondent-Company to supply list of new shareholders, list of new
Directors and copies of Memorandum of Association and Articles of
Association. However, it is alleged that respondent-Company neglected the
same and refused to supply the documents. The appellant-Corporation
thereafter vide letter dated 15th May, 1995 asked the respondent-Company to
pay a sum of Rs.24,95,835/- towards transfer levy as there was disposal of
controlling interest in the venture by the existing allottee. The said
demand of transfer levy, according to appellant, was as per lease deed and
guidelines of the Corporation pertaining to re-constitution and transfer.
10. Being aggrieved the respondent-Company filed suit bearing No.876
of 1996 before Civil Judge, Bulandshahr seeking permanent injunction and
praying for restraining the appellant-Company from claiming any amount as
transfer levy. The appellant filed written statement and contested the
suit.
11. The Civil Judge, Bulandshahr vide judgment and decree dated 23rd
January, 1999 allowed the suit and directed the appellant-Corporation not
to charge transfer levy from the respondent-Company. The Civil Judge, held
that the respondent-Company is a legal person and disposal of its majority
shares in the name of a foreign Company namely Rotar India Ltd. does not
change the legal status of the Company and therefore, there is no transfer.
12. The appellant-Corporation being dissatisfied with the aforesaid
order filed Civil Appeal No.45 of 1999 in the Court of District Judge,
Bulandshahr which was dismissed vide order dated 15th July, 2000.
Thereafter, the appellant-Corporation filed Second Appeal No.1425 of 2000
before the High Court of Judicature at Allahabad and the same dismissed by
impugned judgment dated 24th October, 2005.
M/s Enrich Engineering Works Pvt. Ltd.(A Company registered under the
Companies Act, 1956)
13. One M/s Tyres & Tubes Co. Pvt. Ltd. having its registered office
at Scooters India Ltd. Premises, Sarojini Nagar, PO Lucknow through its
Directors Shri S.Sounderarajan s/o of late Shri S. Srinivasan applied to
appellant-Corporation for allotment of plots of land. After agreement
which was followed by lease deed dated 21st December, 1976 the appellant-
Corporation allotted industrial plot no.A-4 and A-5 admeasuring
approximately 40,489 square yards and 8.36 square yards respectively
situated at site no.2, Rai Bareilly, Uttar Pradesh to M/s Tyres & Tubes
Company Pvt. Ltd. The lease was for 90 years. M/s Tyres & Tubes Co. Pvt.
Ltd. suffered heavy losses and pursuant to its winding up, Allahabad High
Court vide judgment and order dated 9th January, 1996 appointed Official
Liquidator. The Official Liquidator sold the properties of M/s Tyres & Tube
Co. Pvt. Ltd. including right and interest on the land in question to
respondent M/s Enrich Engineering Pvt. Ltd. The said sale was affirmed by
the Allahabad High Court vide order dated 9th February, 2000. Pursuant to
the order of the Allahabad High Court dated 10th September, 2003 the
Official Liquidator issued sale certificate dated 12th March, 2004 in
favour of respondent-Company.
14. The appellant-Corporation was not a party in the winding up
proceedings nor was any notice issued to the appellant-Corporation by the
Official Liquidator. On knowing about transfer of the rights of the
original allottee- M/s Tyres & Tubes Co. Pvt. Ltd., the appellant-
Corporation demanded transfer levy amounting to Rs.3,80,621.25/- from
respondent-Company. According to the appellant, such demand was made from
the respondent-Company, as the said company had purchased M/s Tyres & Tubes
Co. Pvt. Ltd., with all its assets and liabilities.
15. Against the demand, respondent-Company preferred a writ petition
being Civil Misc. Writ Petition No.56982 of 2005 before the Allahabad High
Court which was allowed by the impugned judgment dated 27th April, 2006.
The demand notice was set aside by the High Court in view of judgment
rendered in another similar case.
M/s Super Tannery (India) Ltd.(A Company registered under the Companies
Act, 1956)
16. The appellant-Corporation entered into an agreement dated
10th October, 1990 with one M/s Super Agro Tech Ltd. for setting up of
specialty paper unit in industrial plot nos.A-9 and A-10 admeasuring
approximately 45,080/- square meters in Industrial Area Unnao Site-2. No
right whatsoever in regard to transfer of said plots were given to the
licensee M/s Super Agro Tech Ltd. The possession of the said plots was
handed over on 25th January, 1991 and subsequently lease was also executed.
M/s Super Agro Tech Ltd. thereafter did not set up any specialty paper
unit and no investment was made. According to the appellant-Corporation
said licensee M/s Super Agro Tech Ltd. with a view to enrich itself started
amalgamation proceeding with the new company namely M/s Super Tannery
(India) Ltd.-respondent herein. The said amalgamation was a mutual
understanding between M/s Super Agro Tech Ltd. and M/s Super Tannery
(India) Ltd. The Allahabad High Court vide order dated 9th May, 1997
sanctioned the amalgamation in Company Petition No.32 of 1997. Though the
land belongs to the appellant-Corporation, it was not made a party to the
said petition. According to the appellant-Corporation, the amalgamation
does not create any right whatsoever on respondent-M/s Super Tannery
(India) Ltd. over industrial plots in question and the said two plots
cannot be legally transferred to the new Company i.e. M/s Super Tannery
(India) Ltd.
17. The respondent-Super Tannery (India) Ltd. made an
application for the transfer of the said industrial plot. On such request,
the appellant-Corporation demanded transfer levy from M/s Super Tannery
(India) Ltd. for transfer of the said industrial plot. However, no amount
was deposited. The Corporation by notice dated 3rd November, 2001 demanded
a sum of Rs.34,23,954.51/- as on that date from M/s Super Tannery (India)
Ltd. towards transfer levy. The aforesaid notice was challenged by the
respondent-M/s Super Tannery (India) Ltd. by filing a writ petition being
Civil Misc. Writ Petition No.18535 of 2002 before Allahabad High Court and
the same was allowed, by the impugned judgment dated 22nd August, 2007
following the decision rendered in another case.
Case wise stand of the parties and finding of this Court.
Monsanto Manufactures Private Ltd.
18. Learned counsel for the appellant-Corporation submitted that the
respondent-Company has violated Clause 3(p) of lease deed dated 5th
September, 1979 entered into between the said Company and appellant-
Corporation inasmuch as its "Memorandum of Association" and "Article of
Association" were altered without the written consent of Lessor i.e.
appellant-Corporation. In view of the same the appellant-Corporation has
the right to determine the said lease deed dated 5th September, 1979.
19. On the other hand, according to counsel for the respondent as the
Company has got separate legal status and the Corporation has allotted the
industrial plot to it by name and not in the name of its Directors, the
Directors being only officials working on behalf of the Company, mere
change of names of Directors or shareholders does not in any way or manner
affect the legality or status of the respondent-Company. It was further
contended that change of names of Directors, shareholders duly done within
the purview of the Companies Act, 1956, does not affect the legal status of
the respondent-Company and much less there has been any transfer of the
site by the Company to any other individual person.
20. For deciding the issue involved in the present case it is
necessary to refer certain clauses of licence agreement, lease deed and
guidelines issued by the appellant-Corporation which are common in all the
cases.
21. Clause 4(h) of the licence agreement prohibits licensee's acts to
directly or indirectly transfer, assignment, sale, encumber or part with
its interest under the benefit of the said Agreement without previous
consent in writing of the Grantor, relevant portion of which reads as
follows:
"4(h). That the Licence will not directly or indirectly transfer, assign,
sell, encumber or part with its interest under or the benefit of this
Agreement or any part thereof in any manner whatsoever without the previous
consent in writing of the Grantor and it shall be open to the Grantor to
refuse such consent or grant the same subject to such conditions as may be
laid down by the Grantor in the behalf."
22. Sub-Clause (p) of Clause 3 of lease deed also prohibits any
alteration in the Memorandum and Articles of Association or in its capital
structure without the written consent of the Lessor, relevant portion of
which reads as follows:
"3(p) That the Lessee being a registered partnership firm declares,
affirms and undertakes that during the subsistence of the terms of this
agreement, the said partnership shall not be dissolved, reconstituted or
wound up, and/or dealt with in any way which may jeopardize the rights and
interests of the Lessor in the matter of this lease, nor shall its
constitution be altered in any manner otherwise written consent of the
Lessor, first and obtained, and it shall not stand dissolved on the death
or insolvency of any of its partners;
OR
The Lessee being an individual or sole proprietor of a firm, shall
not allow any person(s) as partner(s) with him without the prior written
consent of the Lessor;
OR
The Lessee being a Company shall not make or attempt to make any
alterations, whatsoever in the provisions of its Memorandum and Articles of
Association or in its capital structure without the written consent of the
Lessor, first had and obtained, and the Lessee hereby undertakes to get
registered the prescribed particulars of the charge hereunder created with
Registrar of Joint Stock Companies under Section 126 of Companies Act,
1956, within stipulated period.
While granting its consent as aforesaid the Lessor may require the
successor in interest of the Lessee to enter into a binding contract with
the Lessor to abide by and faithfully carry out the terms, conditions,
stipulations, provisos and agreements herein contained or such other terms
and conditions as the Lessor may, in its discretion, impose including the
payment by the successor-in-interest such additional premium and/or
enhanced rent as the Lessor may in its discretion think proper. In the even
of breach of this condition the agreement shall be determined at the
discretion of the Lessor.
Provided that the right to determine this agreement under this
clause will not be exercised if the industry at the premises has been
financed by the State Government or the Industrial Finance Corporation of
India or the Industrial Credit and Investment Corporation of India, or the
U.P. Financial Corporation or Pradeshiya Industrial and Investment
Corporation of Uttar Pradesh or any scheduled bank(including the State Bank
of India) and the said financing body or bodies mentioned above decide to
take over possession or sell, or lease or assign the mortgaged assets in
exercise vesting in it or them by virtue of the deeds or deed executed in
its or their favour by the Lessee as provided herein above, or under any
law for the time being in force."
23. The Corporation has issued guidelines for transfer/re-construction
in respect of the plots in the industrial area of the Corporation. Clause
6.01(E) of the said guidelines prescribes Transfer Levy and Clause 6.01(F)
defines transfer. The aforesaid provisions reads as follows:
"6.01(E) Transfer Levy - per sq.m. @ 5% to 15% of the rate of premium in
fast moving areas and 2.5% to 7.5% of the current premium in slow moving
areas prevailing on the date of issuance of transfer approval letter will
be changed as applicable. While calculating the transfer levy the
locational charges of a particular plot will not be considered and only
basic premium will be taken into account.
6.01(F) Transfer - Means disposal of controlling interest in the venture
by the existing allottee. In the case of reconstitution, the existing
allottee retains controlling interest except in case, where interest is
transferred to family members as defined in 6.3(iv)(a) below or where there
is change in the constitution of the allottee due to inheritance,
succession or operation of law."
24. In the present case the entire shareholding of Goyal family headed
by Mr. Amar Nath Goyal in the said company was transferred to the Mehta-
Lamba Family. The entire list of shareholders, Managing Director and Board
of Directors was provided by Monsanto to the appellant-Corporation vide
letter dated 7.5.1994. The record shows that the original subscribers of
shares were members of Goyal family and the entire shareholding was
transferred to Mehta-Lamba family. Therefore, the original subscribers of
shares of respondent No. 1 Company were totally changed.
25. The "Memorandum of Association" of a company limited by shares
mandatorily prescribes in "Table-B" (Table-B of 1956 Act and Table-A of
2013 Act deals with Company Limited by shares) of the Companies Act
mandatorily prescribed that the names, addresses, description, occupation
of subscribers shall be given in Memorandum of Association. In this case as
the original subscribers of shares were changed in 1994, there was material
alteration in the "Memorandum of Association" of respondent no. 1 Company.
26. It was also contended that there was an alteration in "Articles of
Association" of respondent no. 1 Company as well. The last column of
"Articles of Association" also mandatorily provides for giving names,
addresses and description of subscribers. In this case, the subscribers of
shares has been completely changed from the Goyal Family to Mehta-Lamba
Family and hence there was material alteration of "Articles of Association"
of the respondent no. 1 Company.
27. In this case, the ownership of a huge Industrial plot measuring
14,533 sq. ft. in the prestigious and economically affluent area of
Sahibabad (Ghaziabad) has been transferred from Goyal family to the Mehta-
Lamba family for material financial gains, by adopting clever means that
too without taking written consent of the Lessor i.e. appellant-
Corporation. There are many instances/examples in which the lessee gets
allotment of huge industrial plots and thereafter sells the same for huge
monetary gains. This adversely affects the aims and objectives of appellant-
Corporation i.e. the planned development of industrial areas in the State
of Uttar Pradesh. The Hon'ble High Court ought not to have interfered in
the matter looking into the public interest involved and Clause 3(p) of the
lease deed.
U.P. Twiga Fiberglass Limited
28. Similar submissions as made in the above case were made by the
learned counsel for the appellant in the present case also. It was
contended that the respondent-U.P. Twiga Fiberglass Ltd. has violated
Clause 3(p) of lease deed dated 27th May,1977 entered between the said
company and appellant-Corporation inasmuch as its "Memorandum of
Association", "Articles of Association" and capital structure were altered
without the written consent of Lessor appellant-Corporation and in view of
the same, the appellant-Corporation has the right to determine the said
lease deed dated 27th May,1977.
29. Per contra, according to the respondent, the aforesaid
contention(s) are fallacious, misconceived and untenable. Learned counsel
for the respondent made the following submissions:
i) The Lease-Deed dated 27th May, 1977 has been executed by the
respondent-company, in the capacity of a "lessee". Consequently, the
provisions of the Lease-Deed obligate the Lessee/the Company and not its
shareholder(s);
ii) The Lease-Deed contains no clause whatsoever, that authorises such
levy of transfer-fee, nor does it prohibit any change in the share-holding
of the respondent-company. Even otherwise, such change in share-holding was
committed with the express consent and approval of the petitioner;
iii) Law recognises a categorical distinction between a Company and its
share-holders, who have otherwise no right whatsoever on the assets of a
company. Reliance was placed on Constitution Bench decision in Bacha F.
Guzdar, Bombay vs.Commissioner of Income Tax, Bombay, AIR 1955 SC 74, which
observed as follows:
"A share-holder has got no interest in the property of the company
though he has undoubtedly a right to participate in the profits if and when
the company decides to divide them".
And
"the Company is a juristic person and is distinct from the share-
holders. It is the Company which owns the property and not the share-
holders".
iv) In a relationship between the Lessor and a Lessee, it is the Lease-
Deed which is paramount and whose contents are binding on the parties.
v) A unilateral guideline issued by the Lessor cannot be held
applicable or binding to a lessee. On the face of the lease deed, such
guideline has no binding force. Further, change in share-holding was
admittedly done with the express consent/approval of the appellant; and
vi) Any fee, penalty, compensation, damages or transfer charges to be
claimed by the lessor from the lessee must necessarily be provided in the
lease-deed. Otherwise, such fee, penalty, compensation, damages or transfer
charges being beyond the terms of the Lease-Deed cannot be sought or
claimed by the Lessor; Thus the levy of transfer-fee as sought and claimed
by the appellant is illegal, misconceived and untenable, being beyond the
terms of the lease deed. It is not a transfer in law, since transfer in
share-holding does not amount to any transfer in the Company's assets,
immovable or otherwise. It is equally not a transfer in fact, since the
provisions of the Lease-Deed do not recognise/nor prohibit any such
transfer.
vii) The Guidelines and in particular Clause 6.01(F) is not applicable
in the present case as there has been no "disposal of controlling interest
in the venture by an existing allottee". Undoubtedly, the respondent-
company is the "existing allottee" and the respondent-company has not
disposed its "controlling interest in the venture". In other words, there
is no transfer even upon a literal construction of the Guidelines.
30. It is not in dispute that the appellant-Corporation on 27th May,
1977 allotted huge plot measuring 1,10,926 sq. mtrs. to respondent no. 1
Company in the industrial area, Sikandarabad, Bulandshehar on nominal
amount. The respondent no. 1 clearly admitted that it had a huge debt of
Rs.13,14,00,000/- the different financial institutions and, therefore, it
sold shares of company, its own shares, shares of promoters and shares of
financial institutions to the foreign company, namely, "M/s Rotar Ltd."
31. The appellant-Corporation in written statement filed in Suit No.
876/1996 clearly and categorically mentioned that the shares of original
promoters were transferred in the name of new promoters of foreign company
and therefore, the appellant-Corporation demanded list of new shareholders
and Memorandum and "Articles of Association" of the Company. The change of
original promoters shares to the new promoters means the subscribers of
shares were changed and, therefore, there is material change in the
"Memorandum of Association" and "Articles of Association" of the Company.
32. The appellant-Corporation clearly brought on record that there is
change in "Capital Structure" of the company and the "Capital structure" in
common parlance means "debt-equity ratio". In this case admittedly there a
huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e.
"M/s Rotar Ltd." towards settling the debt. In this background the
appellant alleged that there is change in "debt-equity ratio" resulting
alteration in the "capital structure" of the company.
33. There is larger public interest involved in incorporating
alteration in "Capital Structure" in Clause 3(p) of the lease deed. There
are many instances where the company takes loan from third parties on the
security and land and structure allotted to them in lease, keeping in dark
the lessor which amounts to incurring liabilities on the property without
the knowledge of the lessor. In this case also there was huge amount of
debt on the company as it took loan on land and building/factory from
different financial institutions. Therefore, there is public interest
involved for which consent of lessor was necessary.
M/s Enrich Engineering Works Pvt. Ltd
34. In this case also similar submission has been made by the parties.
35. It is not in dispute that the huge plot of about 40, 489 & 8.35
sq. yards in the industrial area of Rai Bareilly (U.P.) was allotted by
appellant-Corporation to M/s Tyres and Tubes Company Pvt. Ltd. As the said
company suffered heavy losses, on 9.1.1996 the company Judge of Allahabad
High Court appointed Official Liquidator and perused High Court's Order on
12.3.2004 the said company was sold to M/s Enrich Engineering Works Pvt.
Ltd., by the Official Liquidator.
36. Learned counsel for the respondent submitted that it was a case of
reconstitution and therefore payment of transfer fee does not arise.
However, such submission can not be accepted in view of Clause 6.01(E) &
(F) of the guidelines. The fact that there is a change of hand of the
asset including the land in question by transfer. Therefore, the
respondent is liable to pay transfer fee.
M/s Super Tannery (India) Ltd.
37. Learned counsel for the appellant submitted that the huge plot of
45080 sq. mtrs. in Kanpur was allotted to M/s Supre Ago Tech Ltd. for
establishing and running a "Specialty Paper Industry". In this case, only a
"License Agreement" dated 10.10.1990 was executed by UPSIDC and the
admitted fact on record is that no lease deed was executed by UPSIDC with
M/s Super Agro Tech. Ltd.
38. In view of the above, M/s Super Agro Tech Ltd. was merely a
licensee and as per the license agreement dated 10.10.1990 it had no
authority whatsoever to transfer the said industrial land to M/s Super
Tannery (I) Ltd.
39. On the other hand, according to the learned counsel for the
respondents, due to various constraints over head costs and financial
hardship company became non viable and the major production activities was
not feasible to run the company. In order to avoid the future problem a
scheme of amalgamation was prepared as per the provisions of the Companies
Act, seeking amalgamation under Chapter V of the Companies Act. A joint
application was filed before the Allahabad High Court. The High Court vide
order dated 9.5.1997 allowed the petition for amalgamation and sanctioned
the scheme of amalgamation and ordered that M/s Super Agro will be merged
into M/s Super Tannery (India) Ltd.
40. In the present case it has not been denied that respondent company
M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd.
are family held companies of the same family having common
Directors/Promoters. Pursuant to the order of amalgamation by the High
Court the plot of land in question namely A-9, A-10, Industrial Area Unnao
Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the
respondent company M/s Super Tannery (India) Ltd. As per Amalgamation
Scheme, all the property, rights and power of Super Agro Tech. Ltd., having
its office at 184/170, Jajmau Kanpur was transferred without further act or
deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order
of the Court the premises in question was transferred in favour of the
other Company.
41. In view of the aforesaid facts as noticed in each case, we hold
that the appellant rightly issued notice demanding transfer fee from each
of the respondents and there was no reason for the High Court to interfere
with the same.
42. For the reason aforesaid, we set aside the impugned judgments
dated 11th May, 2004 in C.W.P.No.5094 of 2000, 24th October, 2005 in Second
Appeal No.1425 of 2000, 27th April, 2006 in Civil Misc.W.P.No.56982 of 2005
and 22nd August, 2007 in C.M. Writ Petition No.18535 of 2002 passed by the
High Court of Judicature at Allahabad and allow the appeals.
...........................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
...........................J.
(V. GOPALA GOWDA)
NEW DELHI;
JANUARY 29, 2015
-----------------------
21
indirectly had transferred or parted with their interest/benefit under
their respective agreements for licence.
Whether the respondents-Companies violated the terms as contained in Clause
4(h) of agreement and Clause 3(p)of their lease deed and
Whether the respondents-Companies are liable to pay transfer fee for
alleged transfer of its own interest.=
In the present case it has not been denied that respondent company
M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd.
are family held companies of the same family having common
Directors/Promoters. Pursuant to the order of amalgamation by the High
Court the plot of land in question namely A-9, A-10, Industrial Area Unnao
Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the
respondent company M/s Super Tannery (India) Ltd. As per Amalgamation
Scheme, all the property, rights and power of Super Agro Tech. Ltd., having
its office at 184/170, Jajmau Kanpur was transferred without further act or
deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order
of the Court the premises in question was transferred in favour of the
other Company.
In view of the aforesaid facts as noticed in each case, we hold
that the appellant rightly issued notice demanding transfer fee from each
of the respondents and there was no reason for the High Court to interfere
with the same.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2731 OF 2005
U.P. STATE INDUSTRIAL DEV.CORPN. LTD. APPELLANT
VS.
MONSANTO MANUFACTURES (P) LTD. & ANR. RESPONDENTS
WITH
C.A.NO.1310 OF 2006
C.A.NO.1318 OF 2015 (@SLP(C) NO.16404 of 2006)
C.A.NO. 1319 OF 2015 (@SLP(C) NO.5838 of 2008)
J U D G M E N T
Leave granted in SLP (C) No.16404 of 2006 and SLP(C) No.5838 of
2008.
2. The Government of Uttar Pradesh acquired land in various districts
and conveyed the same to the appellant-U.P. State Industrial Development
Corporation (hereinafter referred to as, 'the Corporation' for short) for
the purpose of setting up industrial area. The Corporation thereafter
divided the said land
into plots for leasing the same to industrial units. The respondents-
Companies, applied to the appellant-Corporation for grant of lease. On
receiving part premium of the plot, the appellant executed an agreement for
licence and later executed lease deed in favour of the respondents-
Companies. Later the appellant-Corporation made an allegation that the
respondents-companies' share holders transferred their company/their shares
to new shareholders without the consent of appellant-Corporation, which
amounted to transfer of interest, for which transfer levy is required to be
deposited. Demand notices were issued by the appellant-Corporation to the
respondents-Companies. Those demand notices were challenged by the
respondents-Companies in different writ petitions or suits which were
allowed by the Division Bench of the High Court of Judicature at Allahabad
by impugned judgments.
3. In the aforesaid cases the High Court held that unless the
respondents-Companies transfer its right in the plot in question in favour
of another legal entity, there is no question to apply clause 4(h) of the
Agreement for licence. The High Court further held that mere change in
shareholders or Directors, does not change legal entity of the Company and
as such it continues unchanged.
4. The questions that arise for our consideration in these appeals
are:
Whether by the alleged action the respondents-Companies directly or
indirectly had transferred or parted with their interest/benefit under
their respective agreements for licence.
Whether the respondents-Companies violated the terms as contained in Clause
4(h) of agreement and Clause 3(p)of their lease deed and
Whether the respondents-Companies are liable to pay transfer fee for
alleged transfer of its own interest.
5. The facts leading to the cases are as follows:-
Monsanto Manufactures Private Ltd.(A Company registered under the Companies
Act, 1956)
The respondent-Company applied to the appellant-Corporation for
grant of lease of plot of land bearing no.38/1-A situated in Sahibabad
Industrial Area, Site No.4 of Tehsil and District Ghaziabad admeasuring
14,533 square yards for the purpose of constructing an industrial unit.
The appellant-Corporation after receiving part premium of the plot land
executed an agreement for licence on 12th June, 1978 in favour of the
respondent-Company. The possession of the land was given on 12th June,
1978. After construction of the building of the factory, the respondent-
Company and the appellant-Corporation executed a deed of lease on 5th
September, 1979 for a period of 90 years. Later, the appellant-Corporation
vide letter dated 12th April, 1994 asked the respondent-Company to provide
the list of its Directors and shareholders duly certified by the Chartered
Accountant. The same was furnished by the respondent-Company to the
appellant-Corporation on 7th May, 1994. According to the appellant-
Corporation the respondent-Company changed the Directors and shareholders
without prior permission and consent of the appellant-Corporation and since
the respondent-Company was purchased by the present Directors from the
previous Directors. The appellant-Corporation by letter dated 27th May,
1994 asked for details in order to take necessary action in accordance with
the terms of the lease deed. The respondent-Company categorically denied
the allegations levelled by the appellant-Corporation by their letter dated
27th September, 1994.
6. By letter dated 1st October, 1999 the appellant-Corporation
demanded Rs.25,51,781/- from respondent-Company towards transfer levy
charges as the original shareholders of the respondent-Company transferred
their entire shareholding and interest to the new shareholders and there
was change in the Directors of the respondent-Company. According to the
appellant such change makes the shifting of the controlling interest of the
respondent-Company and transfer levy for the same was demanded from the
respondent-Company as per the rules of the Corporation. The Company
submitted its reply vide letter dated 8th December, 1999 and reiterated its
earlier stand to the effect that there is no breach of any terms of the
lease deed as no transfer or assignment or sale of premises in question has
been made. However, it was not accepted by the Corporation, who sent
another reminder dated 13th January, 2000 asking the Company to pay a sum
of Rs.25,51,781/- towards transfer levy charges.
The aforesaid demand notice was challenged by the respondent-
Company before the High Court of Allahabad which by impugned judgment dated
11th May, 2004 allowed the writ petition.
U.P. Twiga Fiberglass Limited (A Company registered under the Companies
Act, 1956)
7. The appellant-Corporation executed an agreement with respondent-
Company followed by lease deed dated 27th May, 1977 by which the
Corporation leased plot nos.9 and 23-A admeasuring approximately 1,10,926
square meters of land situated at Sikandrabad Industrial Area, District
Bulandshahr, Uttar Pradesh to the respondent-Company. The lease was
executed for 90 years. In the year 1994, the respondent-Company suffered
heavy losses to the tune of Rs.42 crores. Therefore, the respondent-
Company sold almost its entire shares including shares of its promoters and
shares lying with financial institutions to a foreign company known as
"Rotar India Ltd.". As entire shares of the respondent-Company transferred
to Rotar India Ltd., the promoters of the said Company were replaced by new
promoters/Directors.
8. According to the appellant-Corporation, in view of the above
disposal of controlling interest in the venture of the existing allottee,
they were liable to pay transfer levy as per Clause 6(f) of the guidelines
of the Corporation pertaining to reconstitution and transfer.
9. The Corporation vide its letter dated 26th April, 1995 requested
the respondent-Company to supply list of new shareholders, list of new
Directors and copies of Memorandum of Association and Articles of
Association. However, it is alleged that respondent-Company neglected the
same and refused to supply the documents. The appellant-Corporation
thereafter vide letter dated 15th May, 1995 asked the respondent-Company to
pay a sum of Rs.24,95,835/- towards transfer levy as there was disposal of
controlling interest in the venture by the existing allottee. The said
demand of transfer levy, according to appellant, was as per lease deed and
guidelines of the Corporation pertaining to re-constitution and transfer.
10. Being aggrieved the respondent-Company filed suit bearing No.876
of 1996 before Civil Judge, Bulandshahr seeking permanent injunction and
praying for restraining the appellant-Company from claiming any amount as
transfer levy. The appellant filed written statement and contested the
suit.
11. The Civil Judge, Bulandshahr vide judgment and decree dated 23rd
January, 1999 allowed the suit and directed the appellant-Corporation not
to charge transfer levy from the respondent-Company. The Civil Judge, held
that the respondent-Company is a legal person and disposal of its majority
shares in the name of a foreign Company namely Rotar India Ltd. does not
change the legal status of the Company and therefore, there is no transfer.
12. The appellant-Corporation being dissatisfied with the aforesaid
order filed Civil Appeal No.45 of 1999 in the Court of District Judge,
Bulandshahr which was dismissed vide order dated 15th July, 2000.
Thereafter, the appellant-Corporation filed Second Appeal No.1425 of 2000
before the High Court of Judicature at Allahabad and the same dismissed by
impugned judgment dated 24th October, 2005.
M/s Enrich Engineering Works Pvt. Ltd.(A Company registered under the
Companies Act, 1956)
13. One M/s Tyres & Tubes Co. Pvt. Ltd. having its registered office
at Scooters India Ltd. Premises, Sarojini Nagar, PO Lucknow through its
Directors Shri S.Sounderarajan s/o of late Shri S. Srinivasan applied to
appellant-Corporation for allotment of plots of land. After agreement
which was followed by lease deed dated 21st December, 1976 the appellant-
Corporation allotted industrial plot no.A-4 and A-5 admeasuring
approximately 40,489 square yards and 8.36 square yards respectively
situated at site no.2, Rai Bareilly, Uttar Pradesh to M/s Tyres & Tubes
Company Pvt. Ltd. The lease was for 90 years. M/s Tyres & Tubes Co. Pvt.
Ltd. suffered heavy losses and pursuant to its winding up, Allahabad High
Court vide judgment and order dated 9th January, 1996 appointed Official
Liquidator. The Official Liquidator sold the properties of M/s Tyres & Tube
Co. Pvt. Ltd. including right and interest on the land in question to
respondent M/s Enrich Engineering Pvt. Ltd. The said sale was affirmed by
the Allahabad High Court vide order dated 9th February, 2000. Pursuant to
the order of the Allahabad High Court dated 10th September, 2003 the
Official Liquidator issued sale certificate dated 12th March, 2004 in
favour of respondent-Company.
14. The appellant-Corporation was not a party in the winding up
proceedings nor was any notice issued to the appellant-Corporation by the
Official Liquidator. On knowing about transfer of the rights of the
original allottee- M/s Tyres & Tubes Co. Pvt. Ltd., the appellant-
Corporation demanded transfer levy amounting to Rs.3,80,621.25/- from
respondent-Company. According to the appellant, such demand was made from
the respondent-Company, as the said company had purchased M/s Tyres & Tubes
Co. Pvt. Ltd., with all its assets and liabilities.
15. Against the demand, respondent-Company preferred a writ petition
being Civil Misc. Writ Petition No.56982 of 2005 before the Allahabad High
Court which was allowed by the impugned judgment dated 27th April, 2006.
The demand notice was set aside by the High Court in view of judgment
rendered in another similar case.
M/s Super Tannery (India) Ltd.(A Company registered under the Companies
Act, 1956)
16. The appellant-Corporation entered into an agreement dated
10th October, 1990 with one M/s Super Agro Tech Ltd. for setting up of
specialty paper unit in industrial plot nos.A-9 and A-10 admeasuring
approximately 45,080/- square meters in Industrial Area Unnao Site-2. No
right whatsoever in regard to transfer of said plots were given to the
licensee M/s Super Agro Tech Ltd. The possession of the said plots was
handed over on 25th January, 1991 and subsequently lease was also executed.
M/s Super Agro Tech Ltd. thereafter did not set up any specialty paper
unit and no investment was made. According to the appellant-Corporation
said licensee M/s Super Agro Tech Ltd. with a view to enrich itself started
amalgamation proceeding with the new company namely M/s Super Tannery
(India) Ltd.-respondent herein. The said amalgamation was a mutual
understanding between M/s Super Agro Tech Ltd. and M/s Super Tannery
(India) Ltd. The Allahabad High Court vide order dated 9th May, 1997
sanctioned the amalgamation in Company Petition No.32 of 1997. Though the
land belongs to the appellant-Corporation, it was not made a party to the
said petition. According to the appellant-Corporation, the amalgamation
does not create any right whatsoever on respondent-M/s Super Tannery
(India) Ltd. over industrial plots in question and the said two plots
cannot be legally transferred to the new Company i.e. M/s Super Tannery
(India) Ltd.
17. The respondent-Super Tannery (India) Ltd. made an
application for the transfer of the said industrial plot. On such request,
the appellant-Corporation demanded transfer levy from M/s Super Tannery
(India) Ltd. for transfer of the said industrial plot. However, no amount
was deposited. The Corporation by notice dated 3rd November, 2001 demanded
a sum of Rs.34,23,954.51/- as on that date from M/s Super Tannery (India)
Ltd. towards transfer levy. The aforesaid notice was challenged by the
respondent-M/s Super Tannery (India) Ltd. by filing a writ petition being
Civil Misc. Writ Petition No.18535 of 2002 before Allahabad High Court and
the same was allowed, by the impugned judgment dated 22nd August, 2007
following the decision rendered in another case.
Case wise stand of the parties and finding of this Court.
Monsanto Manufactures Private Ltd.
18. Learned counsel for the appellant-Corporation submitted that the
respondent-Company has violated Clause 3(p) of lease deed dated 5th
September, 1979 entered into between the said Company and appellant-
Corporation inasmuch as its "Memorandum of Association" and "Article of
Association" were altered without the written consent of Lessor i.e.
appellant-Corporation. In view of the same the appellant-Corporation has
the right to determine the said lease deed dated 5th September, 1979.
19. On the other hand, according to counsel for the respondent as the
Company has got separate legal status and the Corporation has allotted the
industrial plot to it by name and not in the name of its Directors, the
Directors being only officials working on behalf of the Company, mere
change of names of Directors or shareholders does not in any way or manner
affect the legality or status of the respondent-Company. It was further
contended that change of names of Directors, shareholders duly done within
the purview of the Companies Act, 1956, does not affect the legal status of
the respondent-Company and much less there has been any transfer of the
site by the Company to any other individual person.
20. For deciding the issue involved in the present case it is
necessary to refer certain clauses of licence agreement, lease deed and
guidelines issued by the appellant-Corporation which are common in all the
cases.
21. Clause 4(h) of the licence agreement prohibits licensee's acts to
directly or indirectly transfer, assignment, sale, encumber or part with
its interest under the benefit of the said Agreement without previous
consent in writing of the Grantor, relevant portion of which reads as
follows:
"4(h). That the Licence will not directly or indirectly transfer, assign,
sell, encumber or part with its interest under or the benefit of this
Agreement or any part thereof in any manner whatsoever without the previous
consent in writing of the Grantor and it shall be open to the Grantor to
refuse such consent or grant the same subject to such conditions as may be
laid down by the Grantor in the behalf."
22. Sub-Clause (p) of Clause 3 of lease deed also prohibits any
alteration in the Memorandum and Articles of Association or in its capital
structure without the written consent of the Lessor, relevant portion of
which reads as follows:
"3(p) That the Lessee being a registered partnership firm declares,
affirms and undertakes that during the subsistence of the terms of this
agreement, the said partnership shall not be dissolved, reconstituted or
wound up, and/or dealt with in any way which may jeopardize the rights and
interests of the Lessor in the matter of this lease, nor shall its
constitution be altered in any manner otherwise written consent of the
Lessor, first and obtained, and it shall not stand dissolved on the death
or insolvency of any of its partners;
OR
The Lessee being an individual or sole proprietor of a firm, shall
not allow any person(s) as partner(s) with him without the prior written
consent of the Lessor;
OR
The Lessee being a Company shall not make or attempt to make any
alterations, whatsoever in the provisions of its Memorandum and Articles of
Association or in its capital structure without the written consent of the
Lessor, first had and obtained, and the Lessee hereby undertakes to get
registered the prescribed particulars of the charge hereunder created with
Registrar of Joint Stock Companies under Section 126 of Companies Act,
1956, within stipulated period.
While granting its consent as aforesaid the Lessor may require the
successor in interest of the Lessee to enter into a binding contract with
the Lessor to abide by and faithfully carry out the terms, conditions,
stipulations, provisos and agreements herein contained or such other terms
and conditions as the Lessor may, in its discretion, impose including the
payment by the successor-in-interest such additional premium and/or
enhanced rent as the Lessor may in its discretion think proper. In the even
of breach of this condition the agreement shall be determined at the
discretion of the Lessor.
Provided that the right to determine this agreement under this
clause will not be exercised if the industry at the premises has been
financed by the State Government or the Industrial Finance Corporation of
India or the Industrial Credit and Investment Corporation of India, or the
U.P. Financial Corporation or Pradeshiya Industrial and Investment
Corporation of Uttar Pradesh or any scheduled bank(including the State Bank
of India) and the said financing body or bodies mentioned above decide to
take over possession or sell, or lease or assign the mortgaged assets in
exercise vesting in it or them by virtue of the deeds or deed executed in
its or their favour by the Lessee as provided herein above, or under any
law for the time being in force."
23. The Corporation has issued guidelines for transfer/re-construction
in respect of the plots in the industrial area of the Corporation. Clause
6.01(E) of the said guidelines prescribes Transfer Levy and Clause 6.01(F)
defines transfer. The aforesaid provisions reads as follows:
"6.01(E) Transfer Levy - per sq.m. @ 5% to 15% of the rate of premium in
fast moving areas and 2.5% to 7.5% of the current premium in slow moving
areas prevailing on the date of issuance of transfer approval letter will
be changed as applicable. While calculating the transfer levy the
locational charges of a particular plot will not be considered and only
basic premium will be taken into account.
6.01(F) Transfer - Means disposal of controlling interest in the venture
by the existing allottee. In the case of reconstitution, the existing
allottee retains controlling interest except in case, where interest is
transferred to family members as defined in 6.3(iv)(a) below or where there
is change in the constitution of the allottee due to inheritance,
succession or operation of law."
24. In the present case the entire shareholding of Goyal family headed
by Mr. Amar Nath Goyal in the said company was transferred to the Mehta-
Lamba Family. The entire list of shareholders, Managing Director and Board
of Directors was provided by Monsanto to the appellant-Corporation vide
letter dated 7.5.1994. The record shows that the original subscribers of
shares were members of Goyal family and the entire shareholding was
transferred to Mehta-Lamba family. Therefore, the original subscribers of
shares of respondent No. 1 Company were totally changed.
25. The "Memorandum of Association" of a company limited by shares
mandatorily prescribes in "Table-B" (Table-B of 1956 Act and Table-A of
2013 Act deals with Company Limited by shares) of the Companies Act
mandatorily prescribed that the names, addresses, description, occupation
of subscribers shall be given in Memorandum of Association. In this case as
the original subscribers of shares were changed in 1994, there was material
alteration in the "Memorandum of Association" of respondent no. 1 Company.
26. It was also contended that there was an alteration in "Articles of
Association" of respondent no. 1 Company as well. The last column of
"Articles of Association" also mandatorily provides for giving names,
addresses and description of subscribers. In this case, the subscribers of
shares has been completely changed from the Goyal Family to Mehta-Lamba
Family and hence there was material alteration of "Articles of Association"
of the respondent no. 1 Company.
27. In this case, the ownership of a huge Industrial plot measuring
14,533 sq. ft. in the prestigious and economically affluent area of
Sahibabad (Ghaziabad) has been transferred from Goyal family to the Mehta-
Lamba family for material financial gains, by adopting clever means that
too without taking written consent of the Lessor i.e. appellant-
Corporation. There are many instances/examples in which the lessee gets
allotment of huge industrial plots and thereafter sells the same for huge
monetary gains. This adversely affects the aims and objectives of appellant-
Corporation i.e. the planned development of industrial areas in the State
of Uttar Pradesh. The Hon'ble High Court ought not to have interfered in
the matter looking into the public interest involved and Clause 3(p) of the
lease deed.
U.P. Twiga Fiberglass Limited
28. Similar submissions as made in the above case were made by the
learned counsel for the appellant in the present case also. It was
contended that the respondent-U.P. Twiga Fiberglass Ltd. has violated
Clause 3(p) of lease deed dated 27th May,1977 entered between the said
company and appellant-Corporation inasmuch as its "Memorandum of
Association", "Articles of Association" and capital structure were altered
without the written consent of Lessor appellant-Corporation and in view of
the same, the appellant-Corporation has the right to determine the said
lease deed dated 27th May,1977.
29. Per contra, according to the respondent, the aforesaid
contention(s) are fallacious, misconceived and untenable. Learned counsel
for the respondent made the following submissions:
i) The Lease-Deed dated 27th May, 1977 has been executed by the
respondent-company, in the capacity of a "lessee". Consequently, the
provisions of the Lease-Deed obligate the Lessee/the Company and not its
shareholder(s);
ii) The Lease-Deed contains no clause whatsoever, that authorises such
levy of transfer-fee, nor does it prohibit any change in the share-holding
of the respondent-company. Even otherwise, such change in share-holding was
committed with the express consent and approval of the petitioner;
iii) Law recognises a categorical distinction between a Company and its
share-holders, who have otherwise no right whatsoever on the assets of a
company. Reliance was placed on Constitution Bench decision in Bacha F.
Guzdar, Bombay vs.Commissioner of Income Tax, Bombay, AIR 1955 SC 74, which
observed as follows:
"A share-holder has got no interest in the property of the company
though he has undoubtedly a right to participate in the profits if and when
the company decides to divide them".
And
"the Company is a juristic person and is distinct from the share-
holders. It is the Company which owns the property and not the share-
holders".
iv) In a relationship between the Lessor and a Lessee, it is the Lease-
Deed which is paramount and whose contents are binding on the parties.
v) A unilateral guideline issued by the Lessor cannot be held
applicable or binding to a lessee. On the face of the lease deed, such
guideline has no binding force. Further, change in share-holding was
admittedly done with the express consent/approval of the appellant; and
vi) Any fee, penalty, compensation, damages or transfer charges to be
claimed by the lessor from the lessee must necessarily be provided in the
lease-deed. Otherwise, such fee, penalty, compensation, damages or transfer
charges being beyond the terms of the Lease-Deed cannot be sought or
claimed by the Lessor; Thus the levy of transfer-fee as sought and claimed
by the appellant is illegal, misconceived and untenable, being beyond the
terms of the lease deed. It is not a transfer in law, since transfer in
share-holding does not amount to any transfer in the Company's assets,
immovable or otherwise. It is equally not a transfer in fact, since the
provisions of the Lease-Deed do not recognise/nor prohibit any such
transfer.
vii) The Guidelines and in particular Clause 6.01(F) is not applicable
in the present case as there has been no "disposal of controlling interest
in the venture by an existing allottee". Undoubtedly, the respondent-
company is the "existing allottee" and the respondent-company has not
disposed its "controlling interest in the venture". In other words, there
is no transfer even upon a literal construction of the Guidelines.
30. It is not in dispute that the appellant-Corporation on 27th May,
1977 allotted huge plot measuring 1,10,926 sq. mtrs. to respondent no. 1
Company in the industrial area, Sikandarabad, Bulandshehar on nominal
amount. The respondent no. 1 clearly admitted that it had a huge debt of
Rs.13,14,00,000/- the different financial institutions and, therefore, it
sold shares of company, its own shares, shares of promoters and shares of
financial institutions to the foreign company, namely, "M/s Rotar Ltd."
31. The appellant-Corporation in written statement filed in Suit No.
876/1996 clearly and categorically mentioned that the shares of original
promoters were transferred in the name of new promoters of foreign company
and therefore, the appellant-Corporation demanded list of new shareholders
and Memorandum and "Articles of Association" of the Company. The change of
original promoters shares to the new promoters means the subscribers of
shares were changed and, therefore, there is material change in the
"Memorandum of Association" and "Articles of Association" of the Company.
32. The appellant-Corporation clearly brought on record that there is
change in "Capital Structure" of the company and the "Capital structure" in
common parlance means "debt-equity ratio". In this case admittedly there a
huge amount of Rs. 13,14,00,000/- was funded by the foreign company, i.e.
"M/s Rotar Ltd." towards settling the debt. In this background the
appellant alleged that there is change in "debt-equity ratio" resulting
alteration in the "capital structure" of the company.
33. There is larger public interest involved in incorporating
alteration in "Capital Structure" in Clause 3(p) of the lease deed. There
are many instances where the company takes loan from third parties on the
security and land and structure allotted to them in lease, keeping in dark
the lessor which amounts to incurring liabilities on the property without
the knowledge of the lessor. In this case also there was huge amount of
debt on the company as it took loan on land and building/factory from
different financial institutions. Therefore, there is public interest
involved for which consent of lessor was necessary.
M/s Enrich Engineering Works Pvt. Ltd
34. In this case also similar submission has been made by the parties.
35. It is not in dispute that the huge plot of about 40, 489 & 8.35
sq. yards in the industrial area of Rai Bareilly (U.P.) was allotted by
appellant-Corporation to M/s Tyres and Tubes Company Pvt. Ltd. As the said
company suffered heavy losses, on 9.1.1996 the company Judge of Allahabad
High Court appointed Official Liquidator and perused High Court's Order on
12.3.2004 the said company was sold to M/s Enrich Engineering Works Pvt.
Ltd., by the Official Liquidator.
36. Learned counsel for the respondent submitted that it was a case of
reconstitution and therefore payment of transfer fee does not arise.
However, such submission can not be accepted in view of Clause 6.01(E) &
(F) of the guidelines. The fact that there is a change of hand of the
asset including the land in question by transfer. Therefore, the
respondent is liable to pay transfer fee.
M/s Super Tannery (India) Ltd.
37. Learned counsel for the appellant submitted that the huge plot of
45080 sq. mtrs. in Kanpur was allotted to M/s Supre Ago Tech Ltd. for
establishing and running a "Specialty Paper Industry". In this case, only a
"License Agreement" dated 10.10.1990 was executed by UPSIDC and the
admitted fact on record is that no lease deed was executed by UPSIDC with
M/s Super Agro Tech. Ltd.
38. In view of the above, M/s Super Agro Tech Ltd. was merely a
licensee and as per the license agreement dated 10.10.1990 it had no
authority whatsoever to transfer the said industrial land to M/s Super
Tannery (I) Ltd.
39. On the other hand, according to the learned counsel for the
respondents, due to various constraints over head costs and financial
hardship company became non viable and the major production activities was
not feasible to run the company. In order to avoid the future problem a
scheme of amalgamation was prepared as per the provisions of the Companies
Act, seeking amalgamation under Chapter V of the Companies Act. A joint
application was filed before the Allahabad High Court. The High Court vide
order dated 9.5.1997 allowed the petition for amalgamation and sanctioned
the scheme of amalgamation and ordered that M/s Super Agro will be merged
into M/s Super Tannery (India) Ltd.
40. In the present case it has not been denied that respondent company
M/s Super Tannery (India) Ltd. and the other company Super Agro Tech. Ltd.
are family held companies of the same family having common
Directors/Promoters. Pursuant to the order of amalgamation by the High
Court the plot of land in question namely A-9, A-10, Industrial Area Unnao
Site-II which was allotted to Super Agro Tech. Ltd. became the asset of the
respondent company M/s Super Tannery (India) Ltd. As per Amalgamation
Scheme, all the property, rights and power of Super Agro Tech. Ltd., having
its office at 184/170, Jajmau Kanpur was transferred without further act or
deed to M/s Super Tannery (India) Ltd. Thus it is clear that by the order
of the Court the premises in question was transferred in favour of the
other Company.
41. In view of the aforesaid facts as noticed in each case, we hold
that the appellant rightly issued notice demanding transfer fee from each
of the respondents and there was no reason for the High Court to interfere
with the same.
42. For the reason aforesaid, we set aside the impugned judgments
dated 11th May, 2004 in C.W.P.No.5094 of 2000, 24th October, 2005 in Second
Appeal No.1425 of 2000, 27th April, 2006 in Civil Misc.W.P.No.56982 of 2005
and 22nd August, 2007 in C.M. Writ Petition No.18535 of 2002 passed by the
High Court of Judicature at Allahabad and allow the appeals.
...........................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
...........................J.
(V. GOPALA GOWDA)
NEW DELHI;
JANUARY 29, 2015
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