Bombay High Court
The State Of Maharashtra vs Sanghavi Movers Ltd on 4 December, 2023
Author: Neela Gokhale
Bench: K. R. Shriram, Neela Gokhale
2023:BHC-OS:14137-DB
1/19 mvxa-4-2021-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
MAHARASHTRA VALUE ADDED TAX APPEAL NO. 4 OF 2021
IN
VAT SECOND APPEAL NOS. 376 AND 377 OF 2017
The State of Maharashtra,
Through Addl. Commissioner of Sales Tax, VAT-
I, Maharashtra State, Mumbai. ...Petitioner
Versus
Sanghavi Movers Ltd.,
Survey No.92, Tathawade Village, Mulshi, Pune
(M Corp.), Pune City, Pune - 411 033. ...Respondent
Mr. V. A. Sonpal, Special Counsel, with Mr. Himanshu Takke, AGP,
for Appellant.
Mr. Darius Shroff, Senior Advocate, with Mr. Vinayak P. Patkar, Mr.
Ishaan V. Patkar and Mr. Durgesh G. Desai, i/b. Alaksha Legal, for
Respondents.
CORAM : K. R. SHRIRAM &
DR. NEELA GOKHALE, JJ.
RESERVED ON : 8th November 2023.
PRONOUNCED ON : 4th December 2023.
JUDGMENT:
(Per Dr. Neela Gokhale, J.)
1. The present Appeal is filed under Section 27 of the
Maharashtra Value Added Tax Act, 2002 (the Act) impugning the
judgment and order dated 25th September 2020 passed by the
Maharashtra Sales Tax Tribunal, Pune at Pune (the Tribunal) in VAT
Appeal Nos.376 and 377 of 2017.
2. By order dated 15th July 2022, the Appeal was admitted by
Gaikwad RD
2/19 mvxa-4-2021-J.doc
formulating the following question of law:
"Whether the Sales Tax Tribunal on the true and proper
construction of Section 2(24) of Maharashtra Value Added Tax
Act, 2002, was justified in holding that the transaction entered
into by the Respondent with its customers with specific
reference to the discernible and distinguishing contract clauses
does not amount to "sale" under the Maharashtra Value Added
Tax Act, 2002?"
3. The facts giving rise to the present Appeal are that:
Respondent company is engaged in the supply of tangible
goods and services and liable for service tax under the Finance Act
and is also registered under the Act and the Central Sales Tax Act,
1956 (CST Act). It owns a fleet of 370 cranes of different capacities
which are used for erection of industrial plans, refineries,
petrochemical complexes, windmills, etc. Respondent lets out its
cranes as per work order issued by its client to be deployed at the
client's location with the help of skilled employees comprising of
crane operators and riggers of Respondent.
4. In pursuance of a work order dated 1 st April 2008, Respondent
gave on hire and deployed few cranes to its client namely Suzlon
Infrastructure Services Ltd. (SISL) on certain terms and conditions. It
is the case of Respondent that on 3rd September 2013 the
Investigation Officer of Appellant visited place of business of
Respondent and a notice in F-603 followed calling for production of
records. Respondent produced all the necessary documents but the
Investigating officer formed an opinion that the business activity of
Gaikwad RD
3/19 mvxa-4-2021-J.doc
Respondent of giving cranes on hire was covered within the
definition of 'sale' under the Act and thus Respondent was liable to
pay Value Added Tax ("VAT"). Respondent failed to file the revised
return leading to issuance of a notice in F-302 and initiation of
proceedings under Section 23(6) of the Act. Respondent filed its
reply dated 23rd February 2015 and the Investigating Officer
proceeded to issue an order of assessment under the Act. Aggrieved
by the assessment order dated 31st March 2015 and consequent
notice of demand, Respondent preferred an Appeal before the First
Appellate Authority-Deputy Commissioner of Sales Tax, Appeals-2,
Pune Division, Pune. The Appeal came to be dismissed by order
dated 31st January 2017. Aggrieved, Respondent preferred the VAT
Appeals bearing Nos.376 and 377 of 2017 before the Tribunal raising
a main ground, amongst others, that under the works contract only
services were rendered and hence the order impugned was
unsustainable. By a judgment and order dated 25th September 2020,
the Tribunal allowed the Appeals holding that the cranes were merely
hired by Respondent to SISL under the work order and there was no
'transfer of right to use' within the definition of 'sale' under the Act,
and only a service was given. Hence no VAT was payable. It is this
order which is impugned by Appellant by way of the present Appeal.
5. Before dealing with the submissions of contesting parties, it is
necessary to advert to the provisions of the Act and the interplay
Gaikwad RD
4/19 mvxa-4-2021-J.doc
between the legal position and the terms and conditions of the
contract. Section 2(24) of the Act defines 'sale' as under:
"2(24) "sale" means a sale of goods made within the State for
cash or deferred payment or other valuable consideration, but
does not include a mortgage, hypothecation, charge or pledge;
and the words "sell", "buy" and "purchase", with all their
grammatical variations and cognate expressions, shall be
construed accordingly;
Explanation. - For the purposes of this clause,-
.........................
(iv) the transfer of the right to use any goods for any purpose
(whether or not for a specified period) for cash, deferred
payment or other valuable consideration;"
...........................
shall be deemed to be sale.
6. The terms and conditions of the contract reads as thus:
Work Order
Contract riders(clauses)
"1. If the deployed set of cranes of SML fail to meet SISL
requirements mentioned in Clause No. 3 of Contract riders
(clauses), then SISL is not liable to make any payments to SML
and any advance / mobilisation charges paid to SML shall be
refunded to SISL.
2. The hiring period shall be applicable from the date on
which they are put into operation in totality at our site and is
certified by our site in-charge. We shall not certify the set of
subject cranes with any shortfall either by means of crane or
accessories. In case of discontinuation / renewal, SISL shall
inform two months in advance to SML.
3. The cranes shall work for the period from 9 am to 7 pm
with one hour lunch break (minimum 260 hours per month).
However, shift timings shall be mutually agreed by site in-
charge of SISL and SML. Any overtime shall be paid
proportionately on pro-rata basis.
4. Regarding data of diesel consumption, filling up of the
diesel into the crane etc. shall be done by SML representative /
members at site while SISL shall provide suitable space
required for storing of diesel at site to SML.
5. SML shall submit the fitness certificate and load chart
Gaikwad RD
5/19 mvxa-4-2021-J.doc
of all the cranes, which is certified by any government
approved agency, and this is the prime requirement of this
contract. The crane & its operating crew should comply with
all statutory requirements like PUC, RTO licences, etc. and a
copy of all such documents should be maintained with the
crane, at all times.
6. If SML is using any Indian parts or carrying out any
rectification on boom etc. locally then, SML shall guarantee for
its strength as per the load chart. SISL in no case shall be
responsible for any liability arising because of failure of
cranes/any Indian parts.
7. For Inter-site movement of cranes, beyond 100 kms in a
single stretch clause no. 1 of Contract riders (clauses) shall be
applicable.
8. The site can be more than one and SISL to mobilise the
complete set of cranes as per their requirement and charges
shall be paid to SML accordingly as per clause 1 of Contract
riders (clauses). The mobilisation period shall be considered as
hiring period and in normal circumstances crane movement
shall be considered as 125 kms per day. In emergency
situations, SML shall ensure crane movement beyond 125 kms
per day.
9. If any break down occurs while mobilisation of crane,
SISL shall consider the same as hiring period upto the grace
period agreed between SISL & SML. i.e. if time consumed
towards repairing of the crane is extended beyond the grace
period, the crane shall be considered as de-hired for that
period.
10. Grace period will be applicable to account for problems
like breakdown, border crossing etc, and would be:
a. 1 Grace Day upto distance of 500 kms.
b. 2 Grace Days upto distance of 500-1000 kms.
c. 3 Grace Days upto distance more than 1000 kms.
11. SISL shall pay over and above the hiring charges, entry
taxes for Karnataka/Andhra Pradesh/Tamil Nadu & RTO tax
for Gujarat State. However, SML shall advise SISL the approx.
cost towards this per month.
12. Regarding ownership of crane, same shall remain with
SML. However SML cannot use the subject set of cranes for any
other parties job during the contract period unless a written
approval is given by SISL.
13. All required oil, maintenance and arrangements like
accommodation, lunch, local conveyance (four wheeler), site
advance for SML personnel like crane operators, helpers,
maintenance men, etc. shall be arranged and borne by SML.
Gaikwad RD
6/19 mvxa-4-2021-J.doc
14. All tools, spanners, slings, slippers and maintenance
items required for smooth functioning of the crane shall be
arranged by SML.
15. SML shall provide suitable manpower so as to enable
SISL to make use of cranes for completing 8-10 towers per
month if 100% material is available.
16. As per our standard terms, since contract duration is for
more than one year, de-mobilisation charges are not
applicable.
17. Insurance of the crane operators/helpers and crane
team members of SML shall be arranged & borne by SML.
SML shall provide all necessary safety gear like safety shoes,
safety helmet etc. for their personnel. Any safety, health &
environment requirements implemented by SISL from time to
time shall be binding on SML.
18. SML shall make Its own arrangement like watch and
ward, etc. towards security of their equipment and SISL shall
not accept any responsibility in this regard.
19. A log book is to be maintained on daily basis by crane
operator for working hours of the cranes and it should be
signed by site incharge/authorised person of SISL. In no case
SISL shall sign log book for more than one day together. This
is a prime requirement and is to be followed strictly to avoid
any misunderstanding/dispute at a later date.
20. SML shall submit their invoice on calender month basis
with detailed certified log book to SISL-Pune for the attention
of DGM-Purchase and SISL shall make the payment within 15
days after necessary verification. However commitment is for
30 days.
21. The total holidays per month to be observed shall be
no. of Sundays of particular month and not necessarily
Sundays/National holidays/Festivals in view of uncertainty
prevailing in the site work/schedule of materials. In short,
crane shall be used for minimum 26 days a month (10 hours a
day) from the date of readiness of crane.
22. The crane shall be required to move from one tower to
another as per requirement of SISL.
23. The complete set of the cranes would be operated
within the load chart limits and in case of any different jobs
SISL and SML shall study the feasibilities and decided
accordingly.
24. If the subject crane hired under this contract breaks
down during the hiring period, then SML will put the crane
back into operation within 24 hours after doing all necessary
repairing work. However, if cranes are not repaired within
above period, SML shall arrange for alternative crane. The
Gaikwad RD
7/19 mvxa-4-2021-J.doc
period consumed for repairing shall be considered as de-hiring
period.
25. Because of break down of any equipment if total set of
cranes remains idle then, the break down period shall be
considered as de-hiring period for whole set i.e. SISL shall
make payment to SML for only those equipment which are
used by SISL during this period.
26. SML has assured to extend full co-operation of their
crane crew members keeping in mind September & March end
deadline of SISL. In short SML crane crew members shall put
additional efforts to meet SISL requirements during that
period.
27. TDS and other taxes shall be deducted from SML bills,
as per government rules."
(emphasis supplied)
7. Mr. Sonpal, Special Counsel appearing for Appellant contended
that the Tribunal erred in holding that the transaction of Respondent
in hiring its cranes to its clients is not a transaction transferring the
right to use and thereby not exigible to VAT and CST. He submitted
that the question, whether a particular transaction is deemed to be a
'sale', depends on the facts of each case and there is no general
proposition in that regard. Drawing our attention to the 'Notes to
Vendor' appearing at the foot of the work order, Mr. Sonpal contends
that the cranes were given to SISL upon 'delivery' and with a right to
reject the cranes if not found to be as per specifications mentioned in
the work order. He also refers to the contract riders specifying the
period during which the cranes are to be deployed, the exclusive use
to be made by SISL and the operators to work as per the instructions
of SISL, etc. According to him this clearly indicates that the use of
cranes is as per the control of SISL during fixed hours and as per the
Gaikwad RD
8/19 mvxa-4-2021-J.doc
discretion of SISL. Remuneration for hire of crane is also fixed on an
hourly basis. Mr. Sonpal further relies upon decisions of various High
Courts including this Court and the Supreme Court to canvas his
submission that possession is not a sine qua non for a transaction to
be treated as a 'sale'. Mr. Sonpal submitted that:
(a) the goods provided to lessee must be in control of use by the
lessee;
(b) delivery is not a condition precedent to treat a transaction as
transfer of right to use goods;
(c) it is immaterial if the employees of the lessor are paid salaries by
the lessor or the lessor pays for fuel for operating equipment or the
lessor pays for getting the maintenance work done and it is
immaterial if the lessor assumes physical possession of goods during
the period of contract;
(d) there can be no issue on the legal proposition as laid down by the
three judgments mentioned above but the key to the matter is
effective control as held in Rashtriya Ispat Nigam Limited (Supra).
The effective control of the tankers was with HPCL and the owner
was not free to make use of the tankers for the works other than the
project work of respondent or for his own use. That would mean
there was a deemed sale;
Gaikwad RD
9/19 mvxa-4-2021-J.doc
(e) Bramhaputra Vally Construction and Suppliers V/s. ONGC,1 is
clear on the proposition that where a party has effective control and
dominion over the goods during the subsistence of the contract,
though the physical possession may be with the owner, there will be a
deemed transfer of right;
(f) In Waltor Buthello of Mumbai V/s. The Commissioner of Sales
Tax,2 where the facts were similar, the Bombay High Court had held
that there was an effective transfer. Even in the case of Waltor
Buthello of Mumbai (Supra), the driver with uniform was to be
provided by the lessor at his cost, the wages had to be paid by the
lessor, the fuel and maintenance was to be provided by the lessor and
the damages were to be borne by the lessor. The driver was obliged to
follow instructions of the authorities of PMT (lessee). The agreement
also provided that in no circumstances a hired bus will be diverted by
contractor for personal use or gain of any other business and the
lessor has to ply on the routes exclusively determined by the PMT.
Still the Court held that the buses were deemed to be in effective
control of PMT and hence, there was a deemed sale;
(g) Twentieth Century Finance Corporation Limited and Anr. V/s.
State of Maharashtra3 says handing over of physical possession is not
required to decide transfer of right to use;
1 (2012) 53 VST 401.
2 (2017) 101 VST 128 Bombay.
3 (2000) 6 SCC 12)
Gaikwad RD
10/19 mvxa-4-2021-J.doc
(h) In the case of Deepak Nath V/s. ONGC,4 the Court concluded that
the mere fact that after the operation of the crane is over on any
given day the crane may come back to the owner/contractor will
hardly be material to decide as to who has dominion over the crane.
Temporary physical possession of the contractor, the Court held,
would be hardly relevant;
(i) G.S. Lamba and Sons V/s. State of Andhra Pradesh5 says to
determine the nature of the transaction one has to consider the
agreement and having considered the agreement between appellant
and HPCL, there can be no doubt that there was a transfer of right to
use;
(j) The following facts emerge from the agreement between appellant
and HPCL:
(i) The tankers are identified by registration number and are
attached to particular loading location.
(ii) Tankers are in exclusive use of Company for transportation
of petroleum products to customers and other loading stations.
(iii) AHS is not entitled to use the tank truck contracted by oil
company for any other product and would operate only for the
oil company with whom the agreement is entered into.
4 (2010) 31 VST 337 (Gauhati).
5 (2011) 43 VST (AP).
Gaikwad RD
11/19 mvxa-4-2021-J.doc
(iv) AHS cannot assign the rights under the contract, title and
interest in tankers during the period of agreement.
(v) The tankers are available to oil company at its call at all the
times during the period of agreement.
(vi) The oil company has full authority to change the base
loading location, resitement, as per oil company's own
operational convenience/requirement for delivery of petroleum
products.
(vii) Crew is under control of oil company as they have to
follow the route approved by oil company and obey the
instructions of delivery and collect cheques and return the
documents to Company.
(k) The clauses in the agreement reveal that oil company is in
exclusive possession and use of the tankers to transport its petroleum
products and have full control over the tankers and crew for
transportation and delivery of petroleum products to customers/other
locations. The agreement in clear terms provides for transfer of right
to use the trucks for transportation of petroleum products of oil
company."
8. Referring to the decision in Waltor Buthello of Mumbai
Gaikwad RD
12/19 mvxa-4-2021-J.doc
(supra),6 Mr. Sonpal contends that the transaction herein shall be
liable to be treated as 'deemed sale' despite the crew members
operating goods or maintenance work or possession are of
Respondent. He thus submits that in view of the settled legal
position, Respondent's case fulfills the criteria of a transaction
transferring 'the right to use' and hence the Appeal is liable to be
allowed.
9. Per contra, Mr. Darius Shroff, Senior Advocate appearing for
Respondent defends the Tribunal's order by saying that Respondent
merely hired its cranes to SISL and there is no transfer of 'the right to
use' and hence no VAT is payable. He finds fault with the assessment
order dated 31st March 2005, by which the Department sought to levy
VAT on the transactions on the ground that the dominant intention of
the contract was a transfer of the right to use by laying emphasis on
various contract riders and submits that the order of the Tribunal
needs no interference. Mr. Shroff submitted:
(i) There is neither a delivery of the cranes nor possession is given
to SISL. Cranes are simply deployed. The specifications
mentioned in the contract are to be met failing which SISL is not
liable to make payment.
(ii) The payment of hire charges starts only after the cranes are put
into operation which clearly does not suggest handing over of
6 2017 SCC OnLine Bom. 10325.
Gaikwad RD
13/19 mvxa-4-2021-J.doc
possession. Merely giving a delivery address does not transfer
effective control over the cranes to SISL. The delivery in law
should have the intention of passing a right of the owner in the
property to another person.
(iii) The specified timing of work do not indicate transfer of right to
use, but merely indicates the duration for which the cranes are
to operate.
(iv) Submission of fitness certificate and load chart of the cranes by
Respondent certified by Government approved Agencies and the
requirement of compliance by the operating crew of all statutory
mandates like PUC, RTO, other licenses, etc. is to ensure the
same to be instantly available for inspection by any authorities
and does not indicate any transfer of the rights to use to SISL to
the exclusion of Respondent.
(v) Mobilization of cranes from one site to another as per
requirements of SISL is itself the object of deployment, the same
being setting up windmills at various sites which are at times
more than 100 kms. apart. This does not remotely suggest that
Respondent parted with the effective control over the cranes.
(vi) The rider that in case of breakdown of any crane during
mobilization, SISL shall consider the same as 'hiring period upto
the grace period' agreed between the parties does not reflect
Gaikwad RD
14/19 mvxa-4-2021-J.doc
upon the possession and control of SISL. Similarly, the fact that
Respondent was liable to pay entry tax to those States where the
cranes were deployed clearly indicate the possession and control
of Respondent over the cranes.
(vii) The condition that although the ownership of cranes remained
with Respondent, Respondent was not permitted to use any
crane for any other party's job during the contract period
without the written approval of SISL does not in any manner
indicate 'deemed sale'.
(viii) The rider regarding Respondent being responsible for its own
arrangements towards watch and ward towards the security of
the cranes also indicate that possession was always with
Respondent.
10. Mr. Shroff also relied upon the following decisions to buttress
his contention that the hiring of cranes to SISL cannot be construed
as a transaction of transfer of the right to use inviting liability to pay
VAT:
(i) Aurobindo Highway Services v. The State of Maharashtra.7
(ii) Nayana Premji Savala v. Union of India & Ors.8
(iii) M/s. Rashtriya Ispat Nigam Ltd. v. The Commercial Tax Officer,
& Anr.9
7 Internal Citration - 2023 BHC-OS:7690-DB
8 2022 SCC OnLine Bom. 3978.
9 1989 SCC OnLine AP 413.
Gaikwad RD
15/19 mvxa-4-2021-J.doc
(iv) State of A.P. & Ors. v. Rashtriya Ispat Nigam Ltd.10
(v) Bharat Sanchar Nigam Ltd. & Anr. v. Union of India & Ors.11
(vi) The Commissioner of Sales Tax Maharasthra State v. M/s.
General Cranes12
(vii) Commissioner of Sales Tax, Maharashtra State, Bombay v. Rolta
Computer & Industries Pvt. Ltd.13
(viii)Commissioner of Customs (Import) v. Stonemann Marble
Industries & Ors.14
Overview:
11. The Tribunal has dealt with each and every submissions made
by the parties in detail and has also discussed in depth the
applicability of the decisions cited by the parties. Considering the
terms and conditions of the agreement, i.e., the work order, between
Respondent and SISL, the ratio in the decision of General Cranes
(supra), the Tribunal has noted some of the salient features of the
contract conditions in General Cranes (supra). In General Cranes
(supra), the terms of the contract were: (1) though the shift timing
were predetermined, there was provision for working overtime and
payment for the same on a pro rata basis; (2) breakdown of
equipment was to entail pro rata deduction from payment; (3) hire
charges were to commence only on the equipment being ready in all
respects for operation on the site; (4) all papers statutorily required
to operate cranes were to be kept with the cranes and copies thereof
10 (2002) 3 SCC 314.
11 (2006) 3 SCC 1.
12 2015 SCC OnLine Bom. 4867.
13 2009 SCC OnLine Bom. 2393.
14 (2011) 2 SCC 758.
Gaikwad RD
16/19 mvxa-4-2021-J.doc
were to be submitted to the client; and (5) General Cranes was to
supply requisite set of accessories, spares so as to meet the
contingencies of breakdown and maintenance.
12. The Tribunal has compared the attributes of transfer of the
right to use goods as discussed in General Cranes (supra) with those
in the present matter, i.e., the clauses of the contracts in both
matters. The Tribunal has observed that the clauses in both the cases
are substantially similar. No clause in the contract in this case can be
construed so as to conclude that there was intention to transfer the
right to use the cranes in favour of SISL. Every clause in contract and
in particular the emphasized portion as quoted above, unmistakably
lead to the conclusion that the cranes were under effective control
and possession of Respondent herein and during the contract period,
the same were in the custody of SISL. It indicates there was no
transfer at all, let alone transfer of the right to use. It was a clear
case of giving on hire of cranes. The Tribunal has also considered the
definition of 'sale' in the MVAT Act, which is as follows:
" "Sale" means the transfer of the rights to use any goods for
any purpose (whether or not for a specified period) for cash,
deferred payment or any valuable consideration and the word
"sell" with all its grammatical variations and cognate
expressions shall be construed accordingly."
13. The corresponding provision under the Act is the definition of
'sale' in Section 2(24) of the Act. Comparing the two corresponding
provisions, the Tribunal has found full support in the contention of
Gaikwad RD
17/19 mvxa-4-2021-J.doc
Respondent that the same are in 'pari materia'. Hence the Tribunal
has held that the decision in General Cranes (supra) is totally
applicable to the present case and thus, the ultimate control over the
cranes being retained by Respondent, there is no question of transfer
of right to use. Thus, the Tribunal allowed the Appeal of Respondent.
14. We do not find any infirmity in the discussion and finding of
the Tribunal. When would there be a transfer of right to use any
goods has been extensively discussed by this Court in Aurobindo
(supra). In Aurobindo (supra), this Court has discussed various
decisions of other High Court and the Apex Court. The ratio in all
the decisions settles the law that answers to the substantial questions
framed depends essentially on the facts and circumstances of each
case. The riders in the work order in the present case clearly indicate
inter alia that:
(i) SISL was interested in hiring the cranes for transportation of
accessories to various sites where the windmills of SISL were to
be erected.
(ii) The risk of the cranes and transportation was on Respondent.
(iii) The duration of contract and the timing during which the cranes
were to be deployed were specified.
(iv) Recording the data of diesel consumption and filling up diesel
into the cranes was the responsibility of Respondent.
Gaikwad RD
18/19 mvxa-4-2021-J.doc
(v) Fitness certificate and load chart of all cranes certified by
Government approved Agencies was to be done by Respondent.
(vi) Hiring charges were to be paid by SISL.
(vii) Ownership was strictly to remain with Respondent and all tools,
spanners, slings and other maintenance items required for
smooth functioning of the cranes were to be arranged by
Respondent.
(viii)Watch and ward arrangement was the responsibility of
Respondent.
15. All the clauses indicate that the effective control and possession
have always remained with Respondent and what was being provided
to SISL was only the deployment of the cranes on hire. The work
order/contract clearly indicates the intention of parties that the
custody and effective control of the cranes was to remain with
Respondent. In these circumstances, it would be incorrect to contend
that there was a transfer of right to use the cranes.
16. The judgments relied upon by Mr. Sonpal are of no assistance
to him in as much as, as held in Rashtriya Ispat Nigam Limited
(Supra) the effective control was with AHS. In Bramhaputra Vally
Construction and Suppliers (Supra) also the Gauhati High Court has
held that it is the features of the contract which are material and to
be looked into. As regards Waltor Buthello of Mumbai (Supra), the
Gaikwad RD
19/19 mvxa-4-2021-J.doc
facts were entirely different in as much as in that case the buses were
handed over by the contractor to PMT and the buses, which were
handed over to PMT, were registered with the RTO, Pune in the name
of PMT as a lessee. In that case, even the conductor of the bus was
provided by PMT and not the owner of the bus. It was the conductor
of PMT who was to collect the fare from the passengers. The
contractor was also permitted to employ other surplus drivers
employed with PMT where the post of drivers has become surplus on
PMT's establishment. Those were the factors which weighed in the
mind of the Court which is not the case in the appeal at hand. As
regards Twentieth Century Finance Corporation Limited and Anr.
(Supra), it only states that handing over the possession was not
required, but certainly it also states that the entire agreement has to
be seen. G.S. Lamba and Sons (Supra) relied upon by Mr. Sonpal also
was a case where there was a lease which is not the case here.
17. In view of the foregoing, by no stretch of imagination, can we
hold that there was any transfer of right to use the cranes.
Accordingly, we answer the question of law in the affirmative.
18. The Appeal stands dismissed. There will be no order as to
costs.
(DR. NEELA GOKHALE, J.) (K. R. SHRIRAM, J.)
RAJU DATTATRAYA
DATTATRAYA GAIKWAD
GAIKWAD Date:
2023.12.04 Gaikwad RD
16:59:26 +0530
