CO.APP.No.24/2012 Page 1 of 7

*IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 1^st May , 2012

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CO.APP. No.24/2012

NATIONAL INSTT. OF TECHNOLOGY TRUST ...Appellant

Through:

Mr. Sudhir Nandrajog, Sr. Adv. with

Mohit Singla, Adv.

Versus

OFFICIAL LIQUIDATOR

...... Respondent

Through:

Mr. Rajiv Bahl, Adv.

CORAM :-

HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW,J

1. This appeal under Section 483 of the Companies Act, 1956 impugns

the order dated 23^rd January, 2012 of the learned Company Judge

dismissing Co.Appl. No.732/2008 and Co.Appl. No.341/2009 preferred by

the appellant in Co. Pet. No.75/2002, for winding up of M/s Koshika

Telecom Ltd.

2. The petition for winding up of M/s Koshika Telecom Ltd. was filed

on 8^th February, 2002, Provisional Liquidator was appointed and the final

winding up order passed on 2^nd August, 2005.

3. The appellant claims to have entered into an agreement dated 30^th

September, 2002 with the Company in liquidation for purchase of land ad-

measuring 30,350 sq. ft. situated at Microware Tower, Hardoi Road,

Lucknow, Uttar Pradesh, of the Company in liquidation. Co.Appl.

2012:DHC:2964-DB

CO.APP.No.24/2012 Page 2 of 7

No.732/2008 was filed by the appellant for direction to the Official

Liquidator to release the said land and to execute Sale Deed in respect

thereof in favour of the appellant; alternatively permission to file a suit for

specific performance of the agreement to sell dated 30^th September, 2002

against the Company in liquidation was sought. Co. Appl. No.341/2009

was filed for stay during the pendency of the Co.Appl. No.732/2008 of sale

of the said land of the Company in liquidation by the Official Liquidator.

The appellant claims to have paid the entire sale consideration of Rs.47

lacs to the Company in liquidation, in or around November, 2002.

4. The learned Company Judge has dismissed the application aforesaid

solely on the ground that the agreement to sell relied on by the appellant

was of a date after the filing of the winding up petition and was thus

unenforceable under Sections 531 & 531A of the Act. It was further held

that the ignorance, even if any of the appellant, of the pendency of the

winding up petition was of no avail and would not validate the transaction

in question.

5. This appeal came up first before us on 16^th March, 2012. Finding the

agreement to sell relied on by the appellant to be unregistered, it was put to

the senior counsel for the appellant as to how the same was enforceable.

Attention of the senior counsel for the appellant was invited to the

amendment in the State of Uttar Pradesh, where the land is situated, to the

Registration Act, 1908 making registration of such an agreement to sell

compulsory. The senior counsel had then sought an adjournment to study

the matter.

2012:DHC:2964-DB

CO.APP.No.24/2012 Page 3 of 7

6. The senior counsel for the appellant has today been unable to

controvert that:-

(i)

the land being situated in the State of Uttar Pradesh, the law

as applicable in Uttar Pradesh would apply;

(ii)

as per the law in Uttar Pradesh, the agreement to sell was

required to be compulsorily registered and is not so registered;

(iii) that an unregistered agreement to sell cannot even be received

as evidence of a contract in a suit for specific performance, as

per amendment in State of Uttar Pradesh, to Section 49 of the

Registration Act.

7. The senior counsel for the appellant however contends, firstly that

what the appellant is seeking is a direction for execution of the Sale Deed

and which can be executed even in the absence of an agreement to sell; it is

only in the alternative that permission to sue