- (1.) IN the main application, CA No. 333 of 2006, the applicant asserts a right in the nature of pre-emption. In the more recent application, CA No. 623 of 2007 of 2007, the vendor in whose agreement the right is found has sought to be impleaded as an applicant in CA No. 333 of 2006. The original applicant and the later applicant are under the same management and there appears to be no conflict of interest between the two.
(2.) BY an indenture of October 30, 1963, Titagarh Paper Mills Company limited sold a piece of land to George Salter India Limited. The recital to the agreement identified Titagarh Paper Mills Company Limited as the vendor company and specified that such expression was to include its successors. George salter India Limited was referred to in the agreement as the purchaser company which expression was to include its successors and assigns. It is not in dispute that the purchaser company later came to be known as Weighbird India Limited, a company subsequently taken over by the Central Government, the shares wherein were held by the Central Government through Bharat Bhari Udyog nigam Limited. It is also not in dispute that the vendor company came subsequently to be known as Titagarh Steels Limited and ultimately as Titagarh industries Limited, the applicant in the later application.
(3.) IT appears from the document of October, 1963 that both the vendor and the purchaser companies were under a common management. Clauses V and vi of such agreement provide as follows: "v. IT IS HEREBY AGREED and DECLARED BY and BETWEEN THE vendor COMPANY AND THE PURCHASER COMPANY as follows: (i) If at any time hereafter the purchaser company shall desire to sell the said premises or cease to use the said premises for the purpose of manufacture of its products or if the purchaser company be put into liquidation or if at any time Geo. Salter and Co. Ltd. a shareholder of the purchaser company disposes of all or the majority of its shareholding in the purchaser company without the express concurrence in writing of the vendor company then and in such case the vendor company shall have the option of purchasing the said premises. (ii) If at any time hereafter the purchaser company shall create any charge or mortgage on the said premises and if the said premises shall be offered or put up for sale in enforcement of such charge or mortgage then and in such case the vendor company shall have the option of purchasing the said premises before the said premises are offered or put up for sale and it is an express condition or stipulation of this conveyance that any such charge or mortgage of the said premises created by the purchaser company shall be and shall always be deemed to be subject to this condition or stipulation. (iii) In every such case the purchaser company or the party enforcing the charge or mortgage as the case may be shall forthwith make an offer in writing to the vendor company to sell the said premises and in the event of a Court enforcing the charge or mortgage the said property shall apply to such Court for a direction that the said premises be offered to the vendor company for purchase. (iv) If the vendor company shall accept in writing before the expiration of the period of sixth day from the date of receipt by the vendor company of such an offer then the said premises shall be sold to the vendor company free from all encumbrances upon the terms hereinafter contained in this clause. (v) If such offer is expressly declined or is not accepted by the vendor company within the period specified in sub-clause (iv) hereof or if within sixty days from the date on which directions are given by the Court under sub clause (iii) hereof the vendor company does not notify in writing the Court enforcing the charge or mortgage that the vendor company is willing to purchase the said premises then the purchaser company or the party or the Court enforcing the charge or mortgage shall be at liberty to sell or otherwise dispose of the said premises upon such terms as the purchaser company or the party or the Court enforcing the charge or mortgage shall think fit. (vi) The sale under the option exercised on a notice given by the purchaser company under sub-clauses (iii) and (iv) hereof shall be upon the following terms and conditions: (a) The sale price shall be the market price fixed by mutual agreement between the purchaser company and the vendor company or failing agreement by an independent valuer appointed by the President for the time being of the Bengal Chamber of Commerce and Industry at the request of either the purchaser company or the vendor company. (b) The sale shall be completed within six months from the date of acceptance of the offer by the vendor company in terms of sub-clause (iv) hereof. (vii) The sale under the option exercised on a notice given by the party enforcing the charge or mortgage under sub-clauses (iii) and (iv) hereof shall be upon the following terms and conditions: (a) The sale price shall be the market price fixed by mutual agreement between the vendor company and the party enforcing the charge or mortgage or failing agreement by an independent valuer appointed by the President for the time being of the Bengal Chamber of Commerce and Industry at the request of either the vendor company or the party enforcing the charge or mortgage or the price fixed by the Court enforcing the charge or mortgage. (b) The sale shall be completed within such period which as may be agreed between the vendor company and the party enforcing the charge or mortgage or the period which may be fixed by the Court enforcing the charge or mortgage on the application of either the vendor company or the party enforcing the charge or mortgage. VI. Nothing contained in these presents shall be construed as creating a mortgage by conditional sale within the meaning of section 58 of the Transfer of Property Act, 1882 between the vendor company and the purchaser company in respect of the said premises. ";