Gorkap Properties And ... vs Parasram H Bhojwani And Ors
2021 Latest Caselaw 14145 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION
                                 [ COMMERCIAL DIVISION ]

              INTERIM APPLICATION (LODGING) NO.17582 OF 2021
                                           IN
                        INTERIM APPLICATION NO.2701 OF 2020
                                           IN
               COMMERCIAL CHAMBER SUMMONS NO.822 OF 2018
                                           IN
            COMMERCIAL EXECUTION APPLICATION NO.565 OF 2019
                                           IN
                       SUMMONS FOR JUDGMENT NO.9 OF 2018
                                           IN
                   COMMERCIAL SUMMARY SUIT NO.855 OF 2017

Gorkap Properties & Investments Pvt. Ltd.         ] .. Applicant-Org. Resp. No.1
In the matter between
Parasram H. Bhojwani                              ] .. Plaintiff-Judgment Creditor
         Vs.
1. Pravinchand Sehgal                             ]
2. Gaurav Sehgal                                  ]
3. Pooja Sehgal                                   ] .. Defendants-Judg. Debtors
       And
1. Gorkap Properties & Investments Pvt. Ltd.      ]
2. Anamika Jain                                   ] .. Respondents



Mr. Mayur Khandeparkar, with Mr. Sujit Lahoti, i/by Sujit Lahoti & Associates,
for the Applicant-Original Respondent No.1.
Mr. Akash Rebello, with Mr. Aniketh Poojari, i/by C.R. Naidu & Co., for the
Applicant-Original Plaintiff-Judgment Creditor.
Mr. Vaibhav Charalwar, with Mr. Pritvish Shetty, i/by Vidhii Partners, for the
Defendants-Judgment Debtors.
Ms. Kanchan Rane, 1st Assistant to Court Receiver, is present.

                                           1/19
IA(L)-17582-2021-Order dt. 30-9-2021.doc
Dixit
                                              CORAM : A. K. MENON, J.

DATE : 30TH SEPTEMBER 2021.

P.C. :

1. The applicant-original respondent no.1 in IA/2701/2020 has filed this

IA seeking (i) recall of an order dated 14 th July 2021 passed by this court in

Interim Application No.2701 of 2020 (IA 2701); (ii) in the alternative, to

vacate the directions contained in paragraph 7 of the order dated 22 nd April

2019 passed in Commercial Chamber Summons No.822 of 2018; (iii) to

discharge the Court Receiver, High Court, Bombay to the extent it concerns

Unit No.205 in Dilkap Centre, Saki Naka, Mumbai - 400 034 (Unit 205); (iv)

in the alternative, to permit the applicant to let out Unit 205.

2. The applicant-Company is not a judgment-debtor, but was impleaded

in IA 2701 in the aforesaid Chamber Summons No.822 of 2018. The

applicant has contended that it is the sole owner of Unit 205, in respect of

which the Court Receiver has been appointed. The Receiver has not taken

possession since the order dated 22 nd April 2019 passed in chamber

summons, in paragraph 7 thereof, directs the Receiver not to take possession

if the unit was not owned by the defendants/judgment-debtors but the

Receiver was to make a report to the court, which she has done.

3. Mr. Khandeparkar, learned counsel appearing on behalf of the

applicant submitted that the order dated 14 th July 2021 passed by this court

in IA 2701 restrains the applicant and defendant no.3-judgment debtor ("Ms.

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit Sehgal") from dealing with, disposing, encumbering, alienating, transferring

or in any manner parting with possession or creating third party rights in

respect of Unit 205 till further orders. Respondent no.2, who was a licensee of

the premises ("Licensee"), was also restrained from refunding security deposit.

These were the orders passed in aid of execution of a decree against the

judgment-debtors ("Defendants").

4. Mr. Khandeparkar has further submitted that the orders passed in

relation to Unit 205 may be vacated. Unit 205 is not the property of the

defendants-judgment debtors and cannot be subjected to any attachment or

an order appointing Receiver. Unit 205 is owned by the applicant and it is

only because Ms. Sehgal is the daughter of a Director of the applicant, that the

said unit had been temporarily permitted to be used by her. Ms. Sehgal had

initially intended to purchase the said unit and with that intention, the

applicant had issued a Letter of Allotment (LOA) to her on 5th September

2012. Vide that LOA, the applicant had agreed to sell Unit 205 to Ms. Sehgal

on ownership basis for a sum of Rs.86 lakhs, out of which Rs.6 lakhs have

been paid on signing the LOA. The balance amount was to be paid in

installments. No such agreement was subsequently signed and on 10 th March

2017, Ms. Sehgal expressed her inability to complete the transaction due to

financial crisis and unforeseen circumstances. She sought cancellation of the

transaction and stated that she has no claim against the applicant. The sum of

Rs.6 lakhs is then said to have been returned. Mr. Khandeparkar pleaded

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit restitution and submitted that not only was the sum of Rs.6 lakhs returned to

Ms. Sehgal, but that sum has since been deposited in this court pursuant to

orders passed. Thus, the only interest that Ms. Sehgal had in the property was

the amount of advance paid, which had been refunded. Upon refund, there is

no further demand or right that can be made/claimed by Ms. Sehgal in

relation to the property in question. She had no right, title and interest

therein.

5. Mr. Khandeparkar submitted that while it is true that once Anamika

Jain was granted a license to utilize the premises by Ms. Sehgal, the Leave and

License Agreement was entered into pursuant to mutual understanding

between the applicant and Ms. Sehgal, since Ms. Sehgal's father - Dilip

Kapoor was a Director of the applicant. He submits that merely because the

applicant had permitted the Director's daughter to utilize the premises and

she granted leave and license does not mean that the premises were owned by

her. In fact, the LOA does not create any rights in Ms. Sehgal. Mr.

Khandeparkar has relied upon the fact that a mere LOA cannot confer title.

He has relied upon a decision of this court in Income Tax Appeal No.314 of

2013, in which it is observed that a letter of allotment does not confer title

unless an agreement for sale, under the provisions of the Maharashtra

Ownership Flats (Regulation of the Promotion of Construction, Sale,

Management and Transfer) Act, 1963, is executed and registered. He submits

that there cannot be any quarrel as to the fact that in respect of immovable

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit property, any agreement relating to such property would have to be

registered under Section 17 of the Registration Act, 1908. In the present case,

no agreement for sale has been executed. Before the transaction could be

completed, the same was cancelled. The applicant has acted on the

cancellation and released Ms. Sehgal from liability. Mr. Khandeparkar

therefore submits that the applicant ought not to be prejudiced as a result of

inability of the plaintiff/judgment-creditor (plaintiff) to recover the decretal

amount. The applicant is a third-party, not a judgment-debtor, and merely

because its Director was the father of Ms. Sehgal is no reason to have the

Receiver appointed of the premises owned by the applicant.

6. Inviting my attention to the fact that the plaintiff has relied upon

accounting entries in the Balance Sheet and Profit & Loss Account of Ms.

Sehgal, which indicates that she has 100% ownership in Unit 205, Mr.

Khandeparkar submits that is of no consequence, because accounting entries

do not confer title. They are only intended for the purposes of accounts. Mr.

Khandeparkar further submits that book entries cannot convey property. He

has pressed into service a decision of the Madras High Court in

Commissioner of Income-Tax, Tamil Nadu-I Vs. Dadha and Company 1 in this

respect. Mr. Khandeparkar has also relied upon a decision of the Supreme

Court in Hansa V. Gandhi Vs. Deep Shankar Roy and Ors. 2 to submit that the

Supreme Court had also held that a letter of intent issued by the Developer

1 1982 SCC OnLine Mad 243 2 (2013) 12 SCC 776

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit containing certain conditions and until the conditions were fulfilled,

agreements for sale of the flats would not be executed. The Supreme Court

also held that the appellant-plaintiff therein had not entered into any formal

agreement for purchase of a flat with the developer and that a mere letter of

intent, which was subject to several conditions, would not give any right to

the plaintiff to purchase the flat in question. In the absence of an agreement,

which ought to have been registered with the Sub-Registrar, no right would

accrue to the plaintiff in respect of the premises the plaintiff intended to

purchase. Mr. Khandeparkar therefore submitted that, in the instant case also,

the letter of allotment, not being a document conferring title, cannot entail

transfer of the property to Ms. Sehgal. Mr. Khandeparkar has then submitted

that the applicant, not being a judgment-debtor, is not impleaded in the

Execution Application. The applicant is a stranger to the execution

proceedings and the plaintiff has not made out a case that the applicant and

the defendants/judgment-debtors are a single economy entity.

7. Mr. Khandeparkar further submits that the plaintiff has accepted

consideration by way of restitution in accepting the fact that a sum of Rs.6

lakhs was owing and having accepted the same by seeking a deposit of the

amount in the court, it is conclusively established that the applicant has

accepted cancellation of the LOA. He submits that the accounting entry does

not cause vesting of the property in Ms. Sehgal. He has taken me through the

orders dated 12th July 2019 and 14th January 2020 passed by this court in the

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit chamber summons and since the applicant is clearly not a judgment-debtor

and the plaintiff not having established vesting of the property in law or on

facts, the relief sought for may be granted.

8. The IA is opposed by Mr. Rebello on behalf of the plaintiff. He submits

that all contentions of the applicant are untenable. He submits that Ms. Sehgal

had a disposable interest in the property in question and issuance of the LOA

is a restriction placed on the owner from transferring the property. He invites

my attention to the reasons set out in the affidavit filed on behalf of the

plaintiff and in particular the recitals and provisions of the Leave and License

Agreement, wherein Ms. Sehgal has clearly contended that she is the owner of

the property while granting the license. Mr. Rebello has invited my attention

to the accounting entries in the Books of Accounts, as reflected in the Balance

Sheet, and submitted that the amount of Rs.6 lakhs shown under the head

"Loans & Advances" is receivable by Ms. Sehgal from the applicant. This is

evident from the second affidavit-of-disclosure filed by Ms. Sehgal. Mr.

Rebello submits that Rs.6 lakhs is claimed to be booking amount for Unit 205.

The amount has been shown in the books of Ms. Sehgal on assets side and

upon the agreement being registered, it would then have to be disclosed as

fixed assets as per the standard accounting practices. Advance towards

acquisition of immovable property is not shown as loans and advances.

According to Mr. Rebello, the amount of Rs.6 lakhs was a corporate deposit,

which has since been repaid. Ms. Sehgal has also shown the leave and license

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit fees received by her under the head "Income from house property", as

evidenced from the income tax returns. The income is shown as

Rs.6,76,500/-. Standard deduction has been applied under Section 24(a) of

the Income Tax Act.

9. Mr. Rebello submits that the appointment of the Court Receiver ought

not to be set aside since the appointment was made after hearing parties on

22nd April 2019 in Chamber Summons No.822 of 2018 and that there is no

occasion to vacate that order. He submits that the Receiver is not discharged

and the property is custodia legis. The request of the applicant is liable to be

rejected. Mr. Rebello has invited my attention to the affidavit dated 1 st July

2019 filed by Ms. Sehgal, in which she contends that Rs.6 lakhs had been paid

as booking amount. No particulars whatsoever are provided as to how the

amount was paid. Particulars of payments were not provided. The applicant

has not produced any documents in support of these contentions, no bank

statement has been relied upon and thus, there is no evidence to support the

applicant's case of booking amount having been received and letter of

allotment having been cancelled. Furthermore, service tax is payable by a

builder or a developer when he sells or allots property and service tax was

applicable at the time when LOA was issued. No particulars have been

disclosed as to whether service tax payments have been made. According to

Mr. Rebello, once Ms. Sehgal represented that she is the owner and she has

acted on that representation to her benefit.

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit

10. One other point taken up in the affidavit-in-reply is that the leave and

license agreement contemplates payment of monthly rent of Rs.67,650/- for

the first eleven months and subsequently Rs.74,415/-; whereas the accounts

reflect only Rs.4,52,693/-. The excess amount of Rs.2,29,448/- has not been

explained and therefore the contention that respondent no.2 in IA 2701 was

occupying the premises appears to be incorrect. There is no evidence to show

that security deposit paid under the leave and license agreement was

refunded. The leave and license agreement at the time of its registration

requires the owner to furnish proof of ownership at-least in the form of

electricity bills, landline telephones in the premises. In the present case, none

of these documents have been provided. Thus, oral evidence will have to be

led on these aspects.

11. Mr. Rebello contends that the version of Sehgal of Rs.6 lakhs being

refund of booking amounts two years after the cancellation of the LOA is

unbelievable. The amount of Rs.6 lakhs was merely a loan and documents

have been created to suit the present defence taken by Ms. Sehgal, assisted by

the applicant. It is therefore contended that physical possession of the

premises being Unit 205 be taken. Furthermore, under the Maharashtra Real

Estate Regulatory Authority, the unsold premises are required to be shown. In

the present case, Unit 205 has not been shown as unsold. In these

circumstances, Mr. Rebello submits that the versions of the applicant cannot

be believed.

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit

12. Mr. Rebello has also invited my attention to a decision of the Full Bench

of this court in the case of Tangerine Electronics Systems Pvt. Ltd., Mumbai

Vs. Indian Chemicals, Mumbai and Ors. And Shahid Shaukat Sarkar of

Mumbai and Ors.3 in support of his contention that disposing power over the

property would be one of the tests to ascertain ownership. My attention has

also been invited to a decision of the Kerala High Court in Kuruvila Vs.

Michael and Anr.4. Paragraph 12 thereof relies upon an extract from the

decision of the same High Court in K.H. Rajangam Iyer Vs. Umbichi Aiyisha

Veevi5 in support of his contention that a test to see whether a judgment

debtor has a saleable interest in property, can be gathered from whether the

judgment-debtor has power of disposal. According to Mr. Rebello, although

the property may not be capable of alienation by the judgment-debtors, but

the court can nevertheless sell the property. In this manner, the application

has been opposed.

13. I have heard the learned counsel at some length. It will be necessary to

introduce a few factual aspects by way of background. The plaintiff has

obtained a decree for a sum of Rs.5,00,00,000/- against the three judgment-

debtors, along with interest @ 18% p.a. from the date of the dishonour of

cheques till the date of the Suit and thereafter pendent lite and post decree. As

on 20th October 2018, a sum of Rs.5,83,58,094=28 was payable along with

interest @ 18% p.a. from 4th May 2018. A review petition filed was dismissed.

3       2004(2) Mh.L.J. 305
4       2010 SCC OnLine Ker 4983
5       XLIII TLR 466

IA(L)-17582-2021-Order dt. 30-9-2021.doc
Dixit

An appeal was filed, wherein stay was granted for four months subject to

deposit of the decretal sum. No deposit was made and hence the stay stood

vacated. Thereafter, Ms. Sehgal has been directed to deposit Rs.6 lakhs, with

which we are now concerned. The order dated 22 nd April 2019 led to

appointment of the Court Receiver. Thereafter on 10 th June 2019, the court

recorded that the judgment-debtors would be permitted to file affidavit

disclosing allotment letter, termination letter and the transaction between the

applicant and Ms. Sehgal along with relevant documents. Thus, from April,

2019 to June, 2019, the applicant did not appear on the scene at all. This

aspect is required to be considered.

14. On 12th July 2019, this court has recorded that judgment-debtor no.3-

Ms. Sehgal shall disclose particulars of the amount of Rs.6 lakhs being refund

of corporate deposit of the applicant being credited to her bank account and

then transferred to her brother on the same day. Ms. Sehgal was directed to

remain present in court by the order dated 13 th January 2020. The money was

directed to be brought back to the credit of the execution application. This

was promptly done. On 14th January 2020, Ms. Sehgal agreed that Rs.6 lakhs

was transferred to her brother and would be brought back and deposited in

court. Thus, at every stage, judgment debtor no.3-Ms. Sehgal has displayed

resistance of a high degree. In the present case also, the applicant has chosen

to approach this court after a gap of 15 months, after the Receiver was

appointed. It is not as if the applicant was unaware of the appointment of the

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit Receiver. When the Receiver was appointed in April, 2019, the site visit

records that when the Receiver visited the premises, the site supervisor

informed him that the property belongs to the applicant. This court has also

observed in its order dated 27th January 2020 that Ms. Sehgal found to be

prima facie guilty of perjury and notice was issued to her. A copy of the leave

and license agreement was furnished only after that order was passed. The

date of filing of the present application is 11 th August 2021. One wonders

why the applicant did not take steps earlier if it was a genuine case of a

property which "remained unsold". Assuming in favour of the applicant that a

director of the applicant viz. the father of Ms. Sehgal and that out of love and

affection, she was allowed to use the premises. there was no reason for the

applicant not to approach this court earlier, immediately upon knowing that

the Receiver had been appointed. Thus, the delay in approaching the court is

one other aspect that requires to be taken into consideration and is liable to be

held against the applicant.

15. Perusal of the Balance Sheet as of 31 st March 2016 indicates that the

amount of Rs.6 lakhs was shown as loans and advances to the applicant. It is

possible to contend that the amount of Rs.6 lakhs was not a loan but is to be

treated as an advance or earnest money deposit. It is not shown as an

investment in immovable property. That position is continued in the Balance

Sheet for the period ending 31 st March 2017 and 31st March 2018 and

during those years, while an entry under loans and advances shown rent

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit receivables (Jolly Bhavan), rent receivables from the licensee. In the Balance

Sheet as on 31st March 2019 (Provisional), loans and advances shown only

two entries. All others are seen to be discharged. However, in all these years

i.e. 2015-16, 2016-17, 2017-18 and 2018-19, under the "Liabilities" section,

"Jolly Bhavan Deposit" is shown. Thus, it appears that a security deposit was

received in respect of Jolly Bhavan premises from a licensee-tenant, who also

was liable to pay a rent, as disclosed under the head "Loan and Advances". It is

also not understood how "rent receivables" is shown under the head "Loan

and Advances", since these amounts were subsequently shown as "Income

From House Property". Thus, the standard accounting practices followed by

the judgment=debtor no.3-Ms. Sehgal reveals how the amounts of rent, if any,

receivable from the said licensee would be treated in the accounts.

Surprisingly, there is no such entry and nothing has been relied upon during

submissions made before me. One critical aspect is absent in the disclosure,

which one would have expected and that is the proof of absolute ownership

of the Unit.

16. All that has been disclosed is that the applicant claims to be the owner

of the property viz. Unit 205 along with Units 204, 206 and 207 and that it is

an interested licensee. The leave and license draft is enclosed and leave is

sought to execute the leave and license on the basis of the terms disclosed

therein. Under the caption of security deposit, a sum of Rs.6 lakhs is shown as

deposit, that too in respect of the premises admeasuring about 5,740 sq.ft.

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit built-up area. It is not the applicant's case that the prospective licensee is a

relative. The address of the proposed licensee is not disclosed. It only mentions

the name "Creative Concept". The name of the licensee in the execution clause

is however different. It is "Cresent Creative Concept". Thus, prima facie, there

appears to be more than meets the eye. The question is whether the reliefs

prayed for in the IA can be granted in the facts at hand.

17. On behalf of the applicant, it is pointed out that rental income for Unit

205 has been disclosed as Rs.67,650/- as of 31 st March 2016 and

Rs.4,52,693/- as of 31st March 2017 and according to the applicant,

ownership is established beyond doubt and, admittedly, the rental income is

proved thereof. It is the contention of the plaintiff that the cancellation letter

appears to be back dated. There is no proof of receipt of the cancellation

letter. The rental income is higher than the deposit.

18. It is in these circumstances that one has to consider the reliefs sought.

In my view, the applicant has not made out any case for discharge of the

Receiver. The grounds on which the discharge is sought have already been

adverted to above. Apart from canvassing its case that the applicant has issued

a LOA to Ms. Sehgal and that she had subsequently cancelled the allotment,

the applicant, in my view, has not placed anything on record to show

conclusively exclusive ownership of Unit 205. Although the applicant craves

leave to refer to and rely upon details of construction, nothing has been

produced before the court to establish the ownership. No doubt, the

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit applicant's director - Dilip Kapoor has filed an affidavit dated 22 nd July 2021

in IA 2701, which annexes at Exhibit-A the Deed of Conveyance, under

which the applicant is seen to have purchased a plot of land described in

Schedule thereto from Mogaveera Co-operative Bank Ltd. The land is

described in the Conveyance and all that it establishes is that the applicant

became owner of the land. Even that affidavit dated 22 nd July 2021 asserts

ownership of Unit 205 as vesting in the applicant. It also refers to the

averment that applicant has constructed the building and that Ms. Sehgal

being a daughter of one of the directors of the applicant, Unit 205 was

allotted to her for the sum of Rs.6 lakhs as token amount towards her

intention to purchase the said unit, leading to LOA being issued.

19. Considering the family relations, Ms. Sehgal was allowed to use the

unit merely by occupying it and to enable her to earn some income, she was

permitted to grant leave and license to the said licensee. The applicant is not a

confirming party and the said licensee has not come forward to file any

affidavit. Thus, we only have a bare statement of the applicant that it is the

owner of Unit 205. The site supervisor has not produced any document

before the Receiver in support of such ownership claim. That is not to say that

the applicant does not have right in the land but ownership of Unit 205,

which may entitle the applicant to seek an order of discharge of Court

Receiver, has not been established at this stage. It is always open to the

applicant to do so in an appropriate proceedings, but the present attempt

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit cannot succeed. The RERA records also do not support the applicant. Thus,

assuming all facts such as legal effect of the LOA, accounting entries in the

Balance Sheet and Profit & Loss Account etc. in favour of the applicant, the

fact of ownership in the applicant has not been established. Absent express

documentation to show that it is the applicant, which constructed Unit 205

and continued to have the rights of disposal of the property, including by

relying upon the relevant documentation, it is not possible to accept the

applicant's contention that it is the sole owner of Unit 205 and therefore is

entitled to discharge the Receiver by recalling the order dated 14 th July 2021

passed in IA 2701. In any event, there is no occasion to recall the order dated

14th July 2021 in its entirety or to discharge the Court Receiver.

20. That leaves us with the only other prayer in the IA that the applicant be

permitted to let out the premises viz. Unit 205 on such terms and conditions

that this Hon'ble Court deems fit and appropriate. As far as this prayer is

concerned, in the light of the factual background narrated above, it is

admitted position that the applicant had permitted Ms. Sehgal to grant leave

and license of the premises and earn the license fees. That transaction

between Ms. Sehgal and her licensee is also one that raises eyebrows. If, as Mr.

Dilip Kapoor's affidavit states, his daughter was permitted to earn something

from that property, there is no explanation why she was termed as "owner" of

the property in the absence of registered agreement for sale transferring the

property to her or why the applicant was not a confirming party if it was the

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit owner. The fact that the LOA alone does not create right of ownership cannot

be disputed, but the question is since the leave and license granted to the

licensee has been re-affirmed by both Ms. Sehgal and the present applicant,

whoever may be the owner, it is not in doubt that the license was granted and

the license would be granted only by the owner. The applicant is pertinently

not a confirming party to the leave and license agreement. The applicant has

gone to great lengths to point out the inaccuracies and the inconsistencies in

the judgment-creditor's case and they have succeeded to some extent, but

have fallen short of clearly establishing ownership. One does not know

whether there is any further documentation by which the applicant and Ms.

Sehgal had any other inter se agreement.

21. From the record, it is not possible to hold that the applicant is the

exclusive owner of Unit 205. It cannot be disputed that for the Assessment

Year 2017-18, Ms. Sehgal has disclosed Unit 205 as property let out by her,

so is the Jolly Bhavan premises shown as property let out by her. While

security deposit pertaining to the Jolly Bhavan premises received presumably

from the tenants Tarang Exports Private Limited is forming part of the

Balance Sheet and Profit and Loss Account, a similar deposit is not shown to

have been received from the licensee. Municipal taxes are not shown to be

paid. It is not known as to who is paying taxes for Unit 205. Any owner, who

would be claiming any deductions under the Income Tax Act, is also entitled

to claim deduction of municipal taxes payable. In the present case, Ms. Sehgal

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit has described deduction in municipal taxes as "Less : Municipal Taxes - NIL" ,

which indicates that Ms. Sehgal has not claimed benefit of deduction of

municipal taxes payable in respect of the property in question. This is one

other aspect to be taken into consideration. It was upto the applicant to

establish a absolute ownership. The Statement of Income, as aforesaid, also

shows in Schedule-4 details of Ms. Sehgal's properties. Unit 205 is one of

them and it shows "Anamika Jain" as the tenant and the share of the assessee,

namely, Ms. Sehgal, as 100%. These are representations made in statutory

filings pursuant to the Income Tax Returns duly supported by the Balance

Sheet. Capital Account for the year ended 31 st March 2017 also shows rental

income from both Jolly Bhavan premises and Dilkap Centre.

22. The record placed before this court is not sufficient to enable this court

to hold in favour of the applicant on the aspect of ownership of the Unit 205

although there is evidence of a conveyance of land in favour of the applicant.

Thus, the identity of the true owner shall remains obscured. However,

considering this prolonged litigation and the strenuous efforts made by both

sides, it is likely that the proceedings may continue for some time and in that

context, the question is whether the premises being Unit 205 can be let out.

Considering this prayer, which submits to conditions that this court may

impose, I am of the view that the said premises may be let out by the Court

Receiver to such interested parties including the proposed licensee, namely,

Creative Concept / Cresent Creative Concept as part of the other units the

IA(L)-17582-2021-Order dt. 30-9-2021.doc Dixit applicant seeks to let. This will ensure that the applicant is not deprived of the

licensing opportunity it has now disclosed. Accordingly, I pass the following

order :-

(i) Prayers for recall of the order dated 14 th July 2021 and

discharge of the Court Receiver are rejected.

(ii) There will be an order in terms of prayer clause (b) of

the IA, subject to the leave and license agreement in

respect of Unit 205 being executed by the Court

Receiver.

(iii) The license fees payable by the prospective licensee

shall be collected and be paid to the Court Receiver till

further orders.

(iv) IA is disposed in the above terms.

(A. K. MENON, J.)

Digitally signed

SNEHA by SNEHA ABHAY DIXIT IA(L)-17582-2021-Order dt. 30-9-2021.doc ABHAY Date:

Dixit 2021.09.30 DIXIT 17:35:37 +0530