- (1.) THIS appeal under Section 104 read with Order XLIII, Rule 1 (r) C. P. C. has been filed against the judgment and order dated 20-4-2006 passed by VI Upper Civil Judge (Senior Division), Meerut in Original Suit No. 1247 of 2000, M/s. Maheshwari Oxygen Private Limited v. M/s. Deep Live Stock Private Limited Company & Ors. , whereby the application for ad interim injunction during the pendency of suit filed by plaintiff-appellant has been rejected on merits after hearing the parties.
(2.) THE brief facts leading to the case are that the plaintiff/appellant has instituted a suit being Original Suit No. 1247 of 2000 in the Court of Civil Judge Senior Division, Meerut with the allegation that the plaintiff/appellant is a Private Limited Company incorporated under the Companies Act, 1956 having its registered office at B-4 Shambhoo Nagar, Meerut. THE defendant No. 1 is also a Private Limited Company. THE defendant No. 5 is officer of defendant No. 4. THE defendant Nos. 2 is officer of State Government and defendants No. 3 and 4 are the Departments of the Government of India. It is alleged in the plaint that the District Industry Centre, Meerut, defendant No. 4 had allotted plot Nos. C-15 to C- 22 to M/s. Bansal Steel Sons Company Pvt. Limited (a third party to the suit) which is hereinafter referred to as 'the Company' in order to carry on business of rolling mill in the said plots about 30 years ago and in pursuance thereof a lease deed was executed for a period of 99 years in favour of said company. THEreafter a factory building was constructed on the aforesaid leased land by the said company. THE said Company had defaulted in making repayment of the loan taken from the creditors including State Bank of India. Ultimately a petition for winding up of the Company in the year 1987 was filed, which was registered as Company petition No. 2/87. THE official liquidator was appointed in the terms of provisions of Companies Act. THEreafter an advertisement was published in local daily newspaper "amar Ujala" sometime in the September 2002. THE plaintiff has submitted its tender for purchase of entire immovable property of the Company in liquidation. Vide order dated 22 October 2002 offer of plaintiff Company for the purchase of immovable property of the Company measuring 6220 sq. metres against a sale consideration of Rs. 24,51,000/- was accepted and vide order dated 4-12- 2002 the High Court has confirmed the sale in favour of the plaintiff's Company. THE official liquidator was directed to hand over the possession of assets which have been sold and to execute the necessary sale-deed in favour of the purchaser. An office order was prepared on 9-12-2002 by the official liquidator to hand over physical possession of immovable assets i. e. land and building of the Company (in liquidation) to the plaintiff and the possession memo was issued on 11-12-2002 and as per possession memo the physical possession of entire land and building of the Company (in liquidation) was handed over to the plaintiff. THEreafter official liquidator has executed the sale- deed on 7-3-2003 in favour of plaintiff Company in respect of land and building, which were in the occupation of Company (in liquidation) measuring about 6200 sq. metres with the description of plots/land and boundaries. According to the plaint case in the said sale-deed dated 7-3-2003 only plots No. C-17 to C-22 were mentioned and plots No. C-15 and C-16 were inadvertently omitted. It is further alleged that after purchase of said property the plaintiff company has also sold a piece of land measuring about 3000 sq. yards demarcated as plot Nos. C-17 to C-22 to M/s. Gori Components Private Ltd. 275-277 Mangal Pandey Nagar Meerut through sale-deed dated 15-6-2004 and a piece of land measuring about 1490 sq. yard demarcated out of plot Nos. C-17 to C-22 to Shyambeer Sharma, Rambeer Sharma, Vijayveer Sharma and Manbeer Sharma, all are sons of Kedar Sharma, resident of 107 Mohallah Uncha Kasharu Khera, Meerut City through sale-deed dated 10-9- 2005 and as such the plaintiff is still lessee/owner in possession of a piece of land measuring about 2949. 12 sq. yards. The plot Nos. C-15 and C-16 are still owned and possessed by the plaintiff Company. In the last week of November 2004, the plaintiff came to know from reliable sources that the defendant No. 5 Mr. K. N. Lal in collusion and connivance with the promoter- Directors namely Ved Prakash Bansal and Mahesh Prakash Bansal of the aforesaid company (in liquidation) intended to illegally transfer the plot Nos. C-15 and C-16 to third party who is their close relative and as such the plaintiff was compelled to write a letter to the Joint Director District Industry Centre, Meerut on December 6, 2004 and a copy of the said letter was also delivered to the defendants No. 4 and 5 but in spite of receipt of the letter the defendant No. 5 misusing his power and authority and Mr. Ved Prakash Bansal describing himself to be the Managing Director of the Company (in liquidation) had executed transfer agreement of the lease hold right in favour defendant No. 1 through transfer agreement dated 13-12-2004. The said transfer agreement is void on the ground that in case of winding up Company which is subject to the supervision of Court, any disposition of the property of Company made after commencement of winding up proceedings shall unless the Court otherwise orders be void. As such any sale-deed without leave of the Court of any of the properties after commencement of such proceedings shall be void in the terms of provisions of Section 537 (1) (b) of the Companies Act. It is also stated that Company petition No. 2/87 is still subjudice in the High Court of Judicature at Allahabad and the company M/s. Bansal Steel Sons and Pvt. Limited has not been completely wound up as per provisions of Companies Act. It is further stated that the alleged transfer deed executed by Ved Prakash Bansal and defendant No. 5 Mr. K. N. Lal on behalf of defendants No. 3 and 4, the defendant No. 1 has tried to interfere in the plaintiffs possession in respect of plot No. C- 15 i. e. Partapur, Meerut on 22-12-2004 but defendant No. 1 could not succeed in illegally taking possession of the said property. The suit was filed seeking relief for declaration in favour of plaintiff against the defendant to the effect that plaintiff be declared to be lessee of land and owner of super structure of plot Nos. C-15 and C-16 i. e. Partapur, Meerut as plots No. C-15 and C-16 are included in the sale-deed executed by official liquidator attached to the High Court Allahabad in favour of plaintiff Company as per order of Hon'ble High Court dated 22-10-2002 and 3-12-2002. A decree of declaration be granted in favour of plaintiff against defendant to the effect that transfer deed dated 13-12-2004 executed in favour of the defendant No. 1 by defendant Nos. 3 and 4 alongwith M/s. Bansal Steel Sons Company Pvt. Ltd. which has been duly registered on 13-12-2004 at Book No. 1 Zild No. 2673 of page 273/285 at serial No. 9534 in the office of Sub-Registrar III, Meerut be declared void and its intimation be sent to the Office of Sub Registrar III, Meerut. And a further decree of permanent/perpetual injunction be granted in favour of plaintiff against the defendant, their agents, servants, friends restraining them from interfering, creating hindrance in peaceful enjoyment of premises No. C-15 Partapur, Meerut which has been shown in yellow colour in the site plan annexed to the plaint, the boundaries of which are mentioned thereunder and from dispossessing/evicting the plaintiff therefrom. In the aforesaid suit, the plaintiff/appellant has moved an application for ad interim injunction under Order XXXIX, Rules 1 and 2 of C. P. C. with the prayer that during the pendency of suit the defendants, their agents, servants and friends be restrained from interfering and making hindrance/obstruction in plaintiff's peaceful enjoyment of premises No. C- 15 i. e. Partapur, Meerut, which has been shown in the yellow colour in the site plan annexed with the plaint and from dispossessing/evicting the plaintiff therefrom in any manner whatsoever.
(3.) AGAINST the said application for ad-interim injunction under Order XXXIX, Rule 1 and 2 C. P. C. defendant No. 1 as well as defendant Nos. 2 to 5 filed their objection. Defendant No. 1 filed objection vide paper No. 20-C along affidavit 21-C and defendant Nos. 2 to 5 filed objection (paper No. 24-C) alongwith affidavit (paper No. 25-C ). In the objection paper No. 21-C defendant/respondent No. 1 M/s. Deep Live Stock Private Limited admitted the fact that Company (in liquidation) was allotted plot Nos. C- 15 to C-22 by defendant No. 4 and in respect thereof lease deed was executed. The Company after allotment of land constructed its factory shed and building and took loan from State Bank of India and other creditors as well. It was stated that the loan which was taken from the State Bank of India was only in respect of plot Nos. C-17 to C-22 and no loan was taken in respect of plot Nos. C-15 and C-16. In the advertisement published in daily "amar Ujala" only plot Nos. C- 17 to C-22 were mentioned. It was further stated that sale was confirmed vide order dated 4-12-2002 passed by High Court at the same time submitted that the aforesaid confirmation was only in respect of plot Nos. C-17 to C-22 and had nothing to do with plot Nos. C-15 and C-16. However, it was stated that entire assets and land of M/s. Bansal Steel and Sons Company was not sold to the plaintiff Company, rather only plots No. C-17 to C-22 of Industrial Estate Partapur, Meerut was sold to the plaintiff Company. In the said objection the defendant No. 1 has admitted that in the sale-deed in question the area shown is 6220 sq. metres and the boundaries are also correct but further stated that the sale-deed was executed in respect of area measuring about 6220 sq. yards only and not in respect of 6220 sq. metres as shown wrongly in the sale- deed. . The copy of objection is on record as Annexure 9 of the affidavit. The defendants No. 2 to 5 also filed objection staring therein that the suit is barred by provisions of Section 80 C. P. C. and rest of the averments made in the objection by defendant/respondent No. 1 were adopted. A true copy of the objection paper No. 24-C is on record as Annexure 10 of the affidavit. In reply thereto the plaintiff/appellant filed replication against the objection filed by the defendants stating therein that the plot No. C-15 is in possession of the plaintiff/appellant in which the defendants/respondents are trying to interfere in wrongful and illegal manner. As an Amin was also appointed on application moved by the plaintiff/appellant but after giving necessary information to both the parties went on spot and prepared a report alongwith a map. In the report it was mentioned that in spite of information given to the defendants, none of the defendants was present, therefore, the report was prepared in their absence. A true copy of Amin's report dated 17-9-2005 is on record as Annexure 12 of the affidavit. Against the said; report of the Amin dated 17-9- 2005 an objection was filed by defendant/respondent No. 1 on 27- 1-2006, in which it was stated that the Amin's report is not correct. A true copy of the objection is on record as Annexure 13 of the affidavit filed in support of the stay application of this appeal. After hearing the parties and perusing the evidence on record, the trial Court has rejected the ad-interim injunction of the plaintiff/appellant on merits vide impugned judgment and order dated 20-4-2006. Hence this appeal.;