K.Devaraj v. The Official Liquidator

Company Application No.1081 of 2014 in C.P.No.17 of 2004 RAJIV SHAKDHER,J.

1. The prayer made in the application is as follows: "...... to set aside the order dated 16.10.2014 of the Official Liquidator in F.No.122/2005 AR IV and to set aside the Lease Deed dated 19.06.2009 executed by the 1st respondent in favour of the 2nd respondent and duly registered as Document No.2915 of 2009 at the office of the Sub Registrar, Puliampatti, Coimbatore District, in so far as the same relates to the applicants' lands, comprised in S.F. No.

Extent 725/2 3.37 Acres 750/1 1.79 Acres 1.26 Acres 750/2 0.76 1/2 Acres 0.59 Acres 725/1B 5.37 Acres Situated at Irumbarai Village, Karamadai Panchayat Union, Avanishi Taluk, (presently Mettupalayam Taluk), Coimbatore District. ......"

2. For the sake of convenience, the lands, over which, relief is sought, will be collectively described as the subject property.

3. It is the case of the applicant that the subject property was purchased by Krishnappa Gounder for a valid consideration from one P.A.Mohamed Jafar. In this behalf, reliance is placed on two registered sale deeds dated 20.09.1974 and 04.02.1980.

3.1. The applicants aver that consequent there to, mutation in the revenue records has taken place, and thus, the subject property stands in their names.

3.2. The applicants, however, aver that Krishnappa Gounder died intestate on 06.04.1995 and, therefore, they, being his legal heirs, inherited the subject property. It is the case of the applicants that they are in joint possession of the subject property, and that, the patta, qua the said property has been transferred in their names. The applicants further aver that they have been cultivating the subject property and

thus, eke out their livelihood from income derived from the subject property.

3.3. The case set out by the applicants, is that the company in liquidation, i.e., SIV Industries Limited, who was the owner of a large tract of land, had tried to pressurise them to sell the subject property. It is averred that the henchman of the company in liquidation had intimidated the applicants, which led to a police complaint being filed with the Sirumugai Police Station. This complaint is stated to be registered as Cr.No.227 of 1999. It is further averred that a Criminal Case C.C.No.320 of 2000 stands lodged in the Court of Judicial Magistrate, Mettuplayam against the so called representatives of the company in liquidation. The names of persons, who the applicants claim intimidated them, are given in paragraph 7 of the affidavit accompanying the application.

3.4. It is further submitted that upon this Court directing winding up of SIV Industries Limited, large tracts/parcels of land admeasuring 768 acres were auctioned. It is averred that in the auction held, one,

Mr.Ramachandran was declared as the successful bidder. It is stated that Mr.Ramachandran could not be given possession of the land purchased by him in the auction, as the Official Liquidator ( in short OL) did not have clear title with respect to the entire parcel of land advertised for sale. It is submitted that, accordingly, this Court had directed the OL to identify the Survey Numbers with respect to those parcels of land qua which the company in liquidation had a clear title. Thus, according to the applicants, only those parcels of the land out of that which was sold, were handed over to the auction purchaser, qua which, the company in liquidation had clear title.

3.5. It is, thus, submitted that upon the auction purchaser moving an application in this Court, with respect to the land qua which, the company in liquidation did not have clear title, leasehold rights were given in such land based on the prayer made in that behalf. It is stated that, accordingly, vide order dated 02.01.2008, passed in C.A.No.3131 of 2007, this Court, directed the OL to hand over to the auction purchaser or, his nominees, land ad measuring 549.76 acres.

4. It is further submitted that, based on the said order of the Court, the OL executed a lease deed dated 19.06.2009 in favour of respondent No.2, i.e., Mr.M.Palanisamy, a nominee of the auction purchaser, in respect of lands qua which, the company in liquidation had no clear title. 4.1. It is stated that the lease tenure was pegged at 15 years. 4.2. The applicants further state, that erroneously, the subject property also formed part of the land given on lease to respondent No.2/Mr.M.Palanisamy. It is, therefore, the case of the applicants that inclusion of the subject property in the lease deed was unjustified, and thus, this Court should pass appropriate orders to rectify the error caused on account of the actions of the OL.

5. To be noted, upon notice being issued in the application, the OL has filed his reply. The learned OL submits that the applicants on the previous occasions had filed similar applications, which were dismissed as withdrawn. The learned OL, for this purpose, has drawn my attention to

order dated 08.04.2013, passed in O.A.Nos.751 and 754 of 2011. The learned OL has further stated that the applicants, thereafter, made yet another attempt by filing applications being: C.A.Nos.598 and 599 of 2014. It is stated that qua these applications, vide order dated 24.06.2014, this Court, directed the applicants to approach the OL in the first instance with relevant records before any relief could be granted to them.

6. The learned OL, thus, submits that it is because of the order passed by this Court on 24.06.2014, that the applicants approached him. It is submitted by the learned OL that after scrutinising the material placed before him, he could only come to one conclusion, which is that the applicants were unable to prove that the subject property was owned by them.

6.1. The learned OL submitted that, since, the applicants had not placed before him the original title deeds qua the subject property, he had proceeded to reject the applicants' claim vide communication dated 16.10.2014, i.e., the communication which is impugned in the captioned

application.

6.2. The learned OL, further submits (in support of the submissions made hereinabove), that the original title deeds, with respect to the subject property, are in his possession. Furthermore, the learned OL submits that he received a communication dated 22.07.2014 from respondent No.2/Mr.M.Palanisamy, which is indicative of the fact, that the legal heirs of Late Mr.Krishnappa Gounder had entered into a sale agreement dated 06.07.1998, with the company in liquidation and, had received monies in pursuance of the said agreement. It is stated that, consequently, the applicants had executed Power of Attorney and, handed over the title deeds to the company in liquidation.

7. I have perused the record and heard both Mr.SaiKrishna, Advocate in support of the relief sought for in the application and Mr.Ramaiah, the learned OL in opposition.

8. It may be noted that there is no representation on behalf of respondent No.2/Mr.M.Palanisamy, despite service.

9. The record does show that a lease deed dated 19.06.2009 was executed by the, then, OL in favour of respondent No.2/Mr.M.Palanisamy in respect of "F2 properties", qua which, the title was not clear. It may be noted that the respondent No.2/Mr.M.Palanisamy is, concededly, the nominee of the original auction purchaser. By virtue of the said lease, which was executed as far back as on 19.06.2009, the OL has been receiving lease rent at the rate of Rs.2,50,000/-per annum. The tenure of the lease, as indicated above, is 15 years and, would, consequently, come to an end on 18.06.2024. The OL has stated before me, in no uncertain terms, that he is in possession of the following documents in original:

S.No.

Date Details of the Original Documents available with OL 4.2.1980 Sale deed of Shri.K.Palanisamy 06.2.1984 Original unregistered agreement executed by Ammajon in favour of K.Duraisamy 01.7.1996 Power of Attorney executed by Ammajon alias Noorjan in favour of 3rd Applicant vide document No.16/1996 FMB Sketch in respect of SF No.725,749,750 and 916

S.No.

Date Details of the Original Documents available with OL 4.7.1998 Original extract of Adangal in the name of the first applicant Shri K.Devaraj 4.7.1998 Original Extract of Chitta No.257 30.10.1996 Topo Sketch in respect of SF No.725, 749, 750 and 916 along with original adangal extract 9.2.2012 Original Patta Pass Book No.004988 of Shri K.Palanisamy

10. Counsel for the applicants, on the other hand, has conceded before me that the original title deeds are not in possession of the applicants. It is stated that the "henchman" of the company in liquidation took away the original title deeds, and therefore, the said relevant title documents are not in possession of the applicants. Learned counsel, however, submits that the revenue records would show that the subject property stands in the name of the applicants.

11. Therefore, according to me, what emerges is as follows: i) Respondent No.2/Mr.M.Palanisamy is paying lease rent to the Official Liquidator and, I would presume that he would do so only when he is in possession of the subject property.

ii) That the OL is receiving lease rentals with respect to the property which is the subject matter of lease dated 19.06.2009, which includes, the subject property.

iii) Since, lease rentals are being paid by respondent No.2/Mr.M.Palanisamy, it would, therefore, be safe to assume that the said respondent would be paying lease rentals, only if, he is in possession of the leased property, which includes, even according to the applicant, the subject property.

iv) While, the applicants, are not in possession of the original title deeds, the OL has in his possession, to a large extent, the original title documents.

12. Thus, having regard to the aforesaid, the contention of the applicants, that the revenue records would show that they are the owners of the subject property, cannot be countenanced, as title to an immovable property cannot be based on entries in the revenue records.

13. In view of the foregoing facts and circumstances, quite clearly, the assertion of the applicants cannot be accepted, as at present, these

are bare assertions made on affidavit backed by photocopies of original documents. The assertions qua title would require examination, perhaps, in a properly instituted civil suit. This, of course, is a decision which the applicants have to take. Therefore, in my view, no relief as sought for by the applicants can be granted in the captioned application. Accordingly, the captioned application is dismissed.

14. Needless to say, this order will not come in the way of the applicants initiating appropriate proceedings, in accordance with law, to have their assertions tested by way of a proper trial in the matter. sl 06.10.2016

RAJIV SHAKDHER,J.

Sl Company Application No.1081 of 2014 in C.P.No.17 of 2004 06.10.2016