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2009 Supreme(Guj) 3
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
KOTAK MAHINDRA BANK LTD. - Appellant(s)
Versus
O.L. OF M/S. APS STAR IND.LTD. & 19 - Opponent(s)
O.J.APPEAL No.156 of 2007 In COMPANY APPLICATION No.489 of 2006
In OFFICIAL LIQUDATOR REPORT No. 88 of 2006 With O.J.APPEAL No.157 of 2007 In COMPANY APPLICATION No.539 of 2006 To O.J.APPEAL No.164 of 2007 In CIVIL APPLICATION No. 165 of 2005 With O.J.APPEAL No.167 of 2007 In CIVIL APPLICATION No. 226 of 2006 To O.J.APPEAL No.190 of 2007 In MISC. CIVIL APPLICATION No. 213 of 2006
Decided on : 12/01/2009
MR MJ THAKORE, MR MH JOSHI, MR SN SOPARKAR, Senior Advocates, with MR SANDEEP SINGHI for SINGHI & CO for the Appellants
MR RM DESAI with MS AMEE YAJNIK, MR NITIN MEHTA, MR JS YADAV, MR MRUGESH JANI, Advocates, for OFFICIAL LIQUIDATOR IN ALL THE APPEALS MR DS VASAVDA, ADVOCATE FOR TLA
MR ASHOK L SHAH, SR. ADVOCATE with MR BHAGYODAYA MISHRA, MR PAVAN S GODIAWALA, MR INDRAVADAN PARMAR,
MR YOGESH G DEV, MR RAJESH P MANKAD, MR RD DAVE Advocates for opponents,
M/s. TRIVEDI & GUPTA ADVOCATE FOR ONGC MR KAMAL TRIVEDI, Ld. ADVOCATE GENERAL, assisted by MS SANGEETA VISHAN, AGP, for Opponent(s): 19,
Headnote:
Banking Regulation Act, 1949 - Sections 5, 6 and 8 - Transfer of Property Act, 1882 - Section 130 - Companies Act, 1956 - Sections 529 and 529A - Group of appeals has been preferred challenging the judgment and order of Single Judge dismissing Company Application filed by the appellant of Appeal, and similar other matters - Held, Judgment and order of the Company Court does not merit intervention in so far as the rejection of the application for substitution in principle is concerned - No further directions are required to be made as the assignee banks have not been substituted in effect - Appeals Dismissed
(HONOURABLE MR.JUSTICE D.A.MEHTA)
Index
Sr. No. Contents Paragraph Nos.
FROM TO
1. Facts 01 06
2. Contentions:
(a) Appellants
(b) Opponents/Respondents
(c) Rejoinder
07 7.6
08 09
10 11
3. Reasoning 12 47
4. Summary 48
5. Conclusion 49 50
1. This group of appeals has been preferred challenging the judgment and order dated 09.07.2007 of the learned Single Judge (hereinafter referred to as 'the Company Court') dismissing Company Application No.489 of 2006 filed by the appellant of Appeal No.156 of 2007, and similar other matters.
2. It is an accepted position that the facts stated in Appeal No.156 of 2007 are similar to those involved in other appeals and the learned advocates appearing for the respective parties have treated O.J. Appeal No.156 of 2007 as the principal appeal. Hence, hereinafter reference to the facts shall be from the record of O.J. Appeal No.156 of 2007, unless specifically mentioned otherwise. The appellant has formulated the following 19 questions of law, stated to be arising out of the judgment of the Company Court:
âSQUESTIONS OF LAW:
i. Whether the Company Court has erred in adopting a completely erroneous procedure in the conduct of this application, particularly in impleading the Chief Controlling Revenue Authority vide order dated 20.09.2006, completely giving a go by to the provisions of the Bombay Stamp Act, 1958 (hereinafter referred as 'the Stamp Act')?
ii. Whether the Company Court erred in relying upon the opinion expressed by the Chief Controlling Revenue Authority vide his affidavit dated 04.10.2006?
iii. Whether the Company Court was entitled in concluding prima facie relying upon the opinion expressed by the Chief Controlling Authority that the document produced in support of the application for substitution is not properly stamped?
iv. Whether the Company Court was right in expressing opinion that separate stamp duty is required to be paid for each loan transaction, in spite of the fact that the Appellant was not called upon to address the said issue at the time of hearing as that was an issue for the stamp authorities to decide the same?
v. Whether the Company Court has erred in coming to the conclusion that separate stamp duty is required to be paid on each loan transaction?
vi. Whether the Company Court could have come to the conclusion that for each loan transaction with underlying security assigned by the Deed of Assignment separate stamp duty is required to be paid without adjudicating as to whether each loan transaction is a distinct matter within the meaning of Section 5 of the Stamp Act?
vii. Whether the Company Court was justified in opining/remarking that it is on account of enforcement of Securitisation Act and the Scheme for purchasing of financial assets by the Securitisation Company or Reconstruction Company that the State Government has with a view to give encouragement come out with the Notification of putting upper limit of stamp duty of Rs.1 lac?
viii. Whether the Company Court was justified in holding that a separate documentation of assignment of each loan transaction is required in view of the provisions of the Transfer of Property Act and the Registration Act, if the document is assigning the rights as a creditor with security interest?
ix. Whether the Company Court was justified in holding that for assignment of each loan transaction with underlying security the document is required to be registered where one of the immovable properties of the concerned loan transaction is located?
x. Whether the Company Court was justified in rejecting the contention raised by the Appellant relying upon Section 28 of the Registration Act, 1908 read with Section 65 thereof that the registration of document at one place, where one of the properties in any of the loan transactions is situated is sufficient to fulfill the requirements of the Registration Act, 1908?
xi. Whether the Company Court was justified in rejecting the contention raised in Question (x) above, inter alia, on the ground that details of
