Delhi High Court
Ravinder Singh Chauhan vs Wings Wear Pvt Ltd on 28 March, 2012
Author: A.K.Sikri
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th March, 2012
+ CO. APP. 31/2012
RAVINDER SINGH CHAUHAN ..... Appellant
Through: Mr. Kirti Uppal, Sr. Adv. with Mr.
Mayank Kumar, Adv.
Versus
WINGS WEAR PVT LTD ..... Respondent
Through: Mr. Mayank Goel, Adv.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
A.K. SIKRI, ACTING CHIEF JUSTICE
1. This intra-court appeal is preferred against the order dated
01.12.2011 of the learned Company Judge dismissing Company
Application No.1541/2010 preferred by the appellant.
2. It is the case of the appellant that M/s Wings Wear Pvt. Ltd. (in
liquidation vide order dated 07.11.2002) was the owner of flats No.104 and
107 on the First Floor of the building known as Guru Ram Dass Bhawan,
Ranjeet Nagar Commercial Complex, New Delhi; that it had vide two
separate Agreements both dated 25.01.1995 agreed to sell the said flats to
the appellant for a sale consideration of `3,00,000/- each and out of which
a sum of `2,00,000/- against each flat was paid by the appellant as earnest
money. The Company Application No.1541/2010 (supra) was filed by the
appellant seeking a direction to the Official Liquidator to execute the Sale
Deed of the said two flats in favour of the appellant against receipt of
balance sale consideration of `1,00,000/- for each flat from the appellant.
3. The learned Company Judge has dismissed the said application of
the appellant holding that the effect of the winding up order was that the
properties of the company in liquidation were to be applied in satisfaction
of the liabilities of the company as at the time of commencement of the
winding up proceedings. It was further held that no new rights in the
properties of the company in liquidation could be created after the order of
winding up and it was further held that no uncompleted rights could be
completed after the order of winding up and the relief claimed by the
appellant was contrary to the rights of the creditors of the company in
liquidation.
4. The counsel for the appellant before us sought to invoke the
provisions of Section 53A of the Transfer of Properties Act, 1882.
However, for the said provision to be invoked, the possession of the
immovable property agreed to be sold is to be shown to have been handed
over to the Agreement Purchaser in part performance of the Agreements to
Sell. A perusal of the Agreements to Sell relied upon by the appellant does
not show that the possession of the flats agreed to be sold was at the time
of Agreements to Sell delivered to the appellant. The appellant having set
up a written Agreements to Sell and which written agreement does not
provide for the possession of the flats agreed to be sold having been
delivered to the appellant in part performance of the Agreements, the
appellant cannot raise such a plea.
5. The counsel for the appellant has next contended that though the
said flats have been in possession of the tenant of the company in
liquidation but the appellant was realizing rent therefor. Attention in this
regard is invited to the order dated 14.01.2008 in Company Application
No.905/2007 in Company Petition No.202/1996 where the statement of the
Official Liquidator that the appellant (described in that order as the Ex-
Director of the company in liquidation) was realizing rent of the said flats.
Vide that order, the tenant in the said flats was directed to pay the rent to
the Official Liquidator. The counsel for the appellant also admits that the
rent since then is being realized by the Official Liquidator.
6. Merely because the appellant may have started realizing the rent of
the said flats would not mean that the company in liquidation which was /
is the owner of the flats had at the time of the alleged Agreement to Sell or
at any time thereafter, in part performance thereof put the appellant into
symbolic / proprietary possession of the flats. As aforesaid, the appellant,
in the order dated 14.01.2008 (supra) is described at the Ex-Director of the
company in liquidation. It is well nigh possible that the appellant may
have prevailed upon the tenant in the flats to pay the rent to the appellant.
Even if the appellant was realizing the rent, the appellant would still not be
entitled to invoke the provisions of Section 53A (supra).
7. We are also of the opinion that the right even if any of the appellant
under the Agreements to Sell stood extinguished. The said Agreements to
Sell provide for the company in liquidation as seller arranging for the
original title documents with respect to the said flats from Canara Bank,
Padam Singh Road, Karol Bagh, New Delhi within a period of two years
from the date of the Agreements to Sell. The Agreements to Sell further
provide that on receipt of the said title documents and payment of the
balance sale consideration the sale was to be completed. Thus as per the
said Agreements, the date for completion of the sale was two years from
the date of the Agreements i.e. by 24.01.1997. Article 54 of the Schedule
to the Limitation Act, 1963 provides the limitation for suing for specific
performance as three years from the date fixed for performance. The said
period of three years expired on 21.01.2000. The appellant applied to the
Company Judge for execution of the Sale Deed in pursuance to the
aforesaid Agreements, only in the year 2010. The relief claimed in the
application was also thus palpably barred by time.
8. The counsel for the appellant has further argued that the advance
sale consideration of `2,00,000/- paid by the appellant remains with the
company. If the appellant is entitled to recover the same, his remedy
therefor is to make a claim before the Official Liquidator.
9. No merit is found in the appeal, the same is dismissed. No order as
to costs.
ACTING CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
MARCH 28, 2012
'gsr'
