D.A.MEHTA - (1.) The applicant, a Limited Company, has in support of this application by the Judge's Summons prayed for the following reliefs : "[a] To require the opponent to return to the applicant four D.G.Sets let out by the applicant to Mahendra Mills Ltd.(in liquidation) forthwith; [b] To pay over to the applicant outstanding lease rentals for lease of the said D.G.sets till the date of their return; [c] any other and further relief deemed just and proper in the facts and circumstances of the case be granted"
(2.) In support of the Judge's Summons an affidavit dated 14/03/2001 has been sworn by one Shri Jigar Chinubhai Sanghvi in the capacity as Director of the applicant Company. It is stated that at the request of the Mahendra Mills Limited (now in liquidation) (hereinafter referred to 'as company`), the applicant initially acquired 3 Diesel Generating Sets from one Jackson Engineers Ltd. under invoices dated 3/6/1997, 6/6/1997 and 7/6/1997 and gave said three D.G.Sets on lease to the Company under an agreement of lease dated 7/6/1997 (Annexure "B" to the application). Similarly, on 13/11/1997 and 28/11/1997, the applicant purchased two more D.G.Sets which also were leased out to the Company under agreement of lease dated 28/11/1997 (Annexure "D" to the application). From the aforesaid 5 D.G.Sets given under lease agreement to the Company, one D.G.Set was returned in August,1998. Therefore, since August,1998 the Company was in possession of 4 D.G.sets. It is further averred in the affidavit that the Company had failed and/or neglected to pay the rent fixed under the lease agreement. Thus, the applicant is a creditor of the Company in respect of outstanding lease rentals, and hence prayer to pay up the amount of the said lease rentals.
(3.) However, in view of the fact that the Company has been taken into liquidation reliance has been placed on clause 7.1 read with clause 7.1.3 of the lease agreements to contend that in case of a winding up petition presented against the Company both the lease agreements would stand terminated entitling the applicant to recover back the leased assets viz. 4 D.G.Sets.;