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2008 (2) GCD 1269 (Guj)
Hon’ble Mr. Justice D.N. Patel
National Textile Corporation Ltd. [Ahmedabad]
Versus
Ahmedabadni Samasta Modh Champaneri Vanik Gnati & Ors.
Appeal From Order No. 383 of 20071—Decided on 06/12/2007
Transfer of property — Perpetual & permanent lease — Sale to third party — Stay on during pendency of suit.
Point in Issue :
Transfer Property Act, 1882 — Section 114 — Perpetual and peramount lease — Sale of property of third party — Stay on during pendency of suit
Head Note :
Transfer Property Act, 1882 — Section 114 — Perpetual and peramount lease — Sale of property of third party — Stay on during pendency of suit — A lease deed has been entered into between original plaintiff and Defendant No. 2 for suit property which is assignable, perpetual and permanent lease and amount of rent fixed was Rs. 9,601/- and Clause 6 of lease agreement allows transfer — Suit has been instituted by lessor for recovery of possession of suit property in the year 1992 — Alleged notice is for non-payment of rent only — Rent has been deposited on 31.07.2007 and 01.10.2007 which includes interest on rent as well as cost of litigation before trial Court — Defendant No. 1 Company has been taken over by National Textile Corporation — Defendant No. 2 gave a public advertisement for getting highest price, to give sub-lease for the land admeasuring 70,738.89 sq. mtrs. — Stay application preferred by plaintiff for entire land whereas plaintiff is concerned with Final plot No. 113 — Land given lease is now converted into Final plot No. 113 under town planning scheme — Stay has been grated by trial Court for the whole land — Held, trial Court was not justified in directing Defendant No. 2 not to transfer the suit property to third party till final disposal of suit.
Held :
Here admittedly, this amount has been deposited with interest and cost. These aspects of the matter has not been appreciated by the trial Court. In view of the aforesaid facts, there is no prima facie case in favour of the original plaintiff. Balance of convenience is also not in favour of the original plaintiff. No irreparable loss will be caused to the original plaintiff, if the stay as prayed for is no granted; whereas looking to the facts of the case irreparable loss will be caused to Defendant Nos. 1 and 2 if stay as prayed for is granted. [Para 7]
Looking to the lease agreement, it appears that land is now converted into Final Plot No. 113, upon finalization of the Town Planning Scheme, under The Gujarat Town Planning and Urban Development Act and has been alloted Final Plot No. 113 admeasuring about 31884 sq.mtrs. Only; whereas stay prayed for by the plaintiff is for whole land admeasuring 70,738.89 sq. mtrs. Of land and whatever stay as prayed for by the plaintiff, is granted by the trial Court, without properly appreciating Form-F i.e. redistribution of the property under the provisions of the Act, 1976, it will cause an irreparable loss to the Defendant No. 2. As this is only notice of motion stage, detail evaluation of evidence is avoided, despite, the arguments made in detail, and at length analyzing thereof, I am not going much into details, so as to lessen the burden of this judgment. Several authorities have been cited, but which are necessary have been referred for the disposal of the present Appeal from Order. [Para 8]
D.N. Patel, J.—This Appeal from Order has been preferred by original Defendant No. 2 (lessee of a perpetual lease) against the order dated 15.10.2007 below Notice of Motion Application Exhibit 52 in Regular Civil Suit No. 5110 of 1992 passed by City Civil Court at Ahmedabad, whereby though transfer of suit property is allowed by Clause 6 of perpetual and permanent lease, Defendant No. 2 has been directed not to transfer the suit property to third party till final disposal of the suit, filed mainly for the reason that rent is not paid. In fact, rent is already deposited by appellant before trial Court, with interest and cost. Thus, civil suit is a suit for forfeiture for non-payment of rent.
2. Facts of the case :
2.1. It appears from the facts of the case that a lease-deed has been entered into between the original plaintiff and Defendant No. l on 04.02.1955 for the suit property, which is assignable, perpetual and permanent lease and the amount of rent fixed was Rs. 9,601/-. Clause 6 of lease agreement allows transfer.
2.2. It appears from the facts of the case that the suit has been instituted by the lessor for recovery of possession of the suit property in the year 1992.
2.3. It appears from the facts of the case that the alleged notice (receipt of which has been highly disputed by the defendants) is for non-payment of the rent only. Thus, it is notice under Section 114 of the Transfer of Property Act, 1882.
2.4. It appears from the facts of the case that the rent has been deposited on 31.07.2007 and 01.10.2007. This amount is also inclusive of the interest upon the rent as well as cost of litigation, before the trial Court.
2.5. Defendant No. l Company i.e. the Ahmedabad Jupiter Spinning & Manufacturing Company Limited, has been taken over by National Textile Corporation Holdings, which was ultimately taken over by National Textile Corporation (Gujarat) by various Notifications especially under The Sick Textile Undertakings (Notification) Ordinance,1974. Sections 3 and 4(1) thereof are relevant and referred time and again read as under:
“CHAPTER II
Acquisition of the Rights of Owners of Sick Textile Undertakings
Acquisition of rights of owners in respect of sick textile undertakings.
3. (1) On the appointed day, the right, title and interest of the owner in relation to every sick textile undertaking shall stand transferred to, and shall vest absolutely in, the Central Government.
(2) Every sick textile undertaking which stands vested in the Central Government by virtue of Sub-section (1) shall, immediately after it has so vested, stand transferred to, and vested in, the National Textile Corporation.
General effect of vesting.
4(1) The sick textile undertaking referred to in Section 3 shall be deemed to include all assets, rights lease holds, powers, authorities and privileges and all property, movable and immovable, including lands, buildings, workshops, stores, instruments machinery and equipment, cash balances, cash on hand, reserve funds, investments and book debts and all other rights, and interests in, or arising out of, such property as were immediately before the appointed day in the owner -ship, possession, power of control of the textile company in relation to the sick textile undertaking, whether within or outside India, and all books of account , registers and all other documents of whatever nature relating thereto.” (Emphasis supplied)
2.6. BIFR has already drafted the scheme wherein the disputed property has been interwoven. BIFR scheme has been finalized on 19.02.2002. Before finalization of the scheme by BIFR, a public notice was given. Never any objection was raised by the original plaintiffs i.e. by the present respondents.
2.7. Hon’ble Supreme Court has passed an order dated 27.09.2002 in the case of (NTC (IDA) Employees Association vs. Union of India and Others in Special Leave Petition (Civil) No. 16732 of 1997 and held that the aforesaid scheme sanctioned by BIFR be implemented.
2.8. Defendant No. 2 gave a pub
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