P L D 2000 Lahore 391 (PLP)

Mr. Saleem Sehgal, Advocate, however, referred to sections 355 and 479 of the Companies Ordinance whereby it is provided that any order made by the‑ Court under the Ordinance is to be enforced in the same manner as a decree made by a Court in a suit. It was argued that in an eventuality as such Order XXI, C.P.C. may be applied and a sale certificate will have to be issued under Rule 94 of Order 21 but not in a case of sale by the Official Liquidator.

6. Mr. Faisal Islam, Advocate who was also called upon to assist this Court having referred to section 402 of the Companies Ordinance, 1984 argued that despite winding up order of the company, the company continues in existence while the management thereof vests in the Official Liquidator. Section 333 of the Ordinance authorises the Official Liquidator to sell the movable and immovable property of the company and for that purpose to execute all deeds on behalf of the company. Reliance was placed on Sarbaz Cement Ltd. through Manager v. Bankers Equity Ltd. and 6 others 1996 SCMR 88 to support the abovesaid view that Official Liquidator has power under section 333 to sell the property of the company under liquidation. It was emphatically maintained that there is no case‑law available either by the superior Courts of Pakistan or India thereby supporting the view that the sale certificate can be issued in the liquidation proceedings. Reference was also made to Mian Saleem‑ud‑Din and others v. Major Jameel Akhtar Pervaiz and others 1988 SCMR 1717 wherein reference was made to a' sale agreement incorporating certain terms and conditions. It was argued on the basis thereof that an oblique reference can be found to a sale‑deed for the deed of sale agreement can only be executed if a conveyance is required to be executed. It was then that reference to the following cases from the Indian jurisdiction was made to submit that the execution of the deed by the Official Liquidator has been discussed in the cases noted below:‑‑ (1) N. Babu Jarrardhanam v. Golden Films (P) Ltd. and another Indian Company Cases (1993) Volume 73, p.455 relevant portion at page 458‑D. (2) Syndicate Bank v. Field Star Lyde Industries P. Ltd. and another Indian Company Cases (1995) Vol. 83, p.687 relevant portions at pages 691‑E and 696‑F. It, was held in Specialty Traders v. Firdous Textile Mills Ltd. 1987 CLC 2109 that rules 64 to 73 and.89 to 92 of Order XXI,.C.P.C. are not attracted in the case of public auction by the High Court in winding up proceedings. It would be seen that Rule 94 is attracted only when a sale becomes absolute in terms of Rule 92, therefore, the question of sale certificate pursuant to public auction in a winding up proceedings was ruled out altogether. He concluded his argument with reference to the case of Abdul Qayyum Khan. v. Government of Punjab and others PLD 1995 Lah. 205 wherein at page 218 it has been observed: "needless to add that High Court while exercising ordinary original civil jurisdiction to try a suit and while hearing an appeal arisen from a suit which has always been held to be continuation of the suit itself would also fall within the ambit of the terms of the Civil Court.

7. It was argued on the basis of the observation as referred to above that the sale made through public auction of properties of any person or company except of a company against which winding up order had been made, the High Court is required to issue a sale certificate in favour of the auction‑purchaser and if such a sale certificate is issued, it would attract stamp duty as per Article 18 of the Stamp Act as the High Court would be considered as a Civil Court as per Abdul Qayyum's case noted supra.

8. It would be noted that the petitioner had initially prayed for a direction to the Registrar of the area to register the certificate of sale issued to him in relation to the land only and in the alternative had prayed that separate certificates for sale be issued to him in relation to land, machinery and equipment as according to him the three matters aforementioned were distinct and separate but the case as argued by the original counsel, amicus curiae as also the counsel for the petitioner himself was entirely different for excepting for Mr. Ali Zafar all of them argued that no sale certificate is required to be issued in the case of sale of the assets of the company under liquidation. Mr. Ali Zafar also argued that if the Court chooses to follow the procedure as prescribed in Rule 94 of Order XXI then in that case a certificate of sale is required to be issued but he too, like others argued in the alternative that as per provisions contained in sub‑clause (f) of subsection (1) of section 333 of the Companies Ordinance, 1984, a conveyance is required to be executed by the Official Liquidator in favour of the purchaser subject to solution either of the Court or of the committee of inspection. It flows from the scheme of the Ordinance itself that the company which is ordered to be wound up remains alive and operative for all intent and purposes till it is dissolved by the order of the Court. The only exception being that the management 9f the company remains no more in field and instead Official Liquidator takes over the affairs of the company. The Legislature in, its wisdom did not leave it there for it ordained that every asset of the company should be sold by the Official Liquidator_ who would not only execute document in regard thereto but also can use the seal of the company for the said purpose., The field is obviously occupied by the express provisions of the Ordinance leaving no room for the Court to choose to exercise its discretionary powers thereby directing that procedure of rule 94 of Order XXI be followed. Mr. Faisal Islam rightly relied on the rule laid down in the: case of Sarbaz Cement Ltd. noted (supra) wherein it is observed as follows:‑‑ S.333 ‑‑‑Powers of Official Liquidator ‑‑‑Scope‑‑Official Liquidator has been vested with powers to sell the movable and immovable property and things in action ‑of' the company by public auction or private contract with power to transfer the whole thereof to any person or company or to sell the same in parcels‑‑‑Such powers, of the Official Liquidator are subject to the sanction either of the Court or of the Committee of Inspection as the case may be‑‑‑Where the terms and conditions asking for bids published in different newspapers clearly indicated that offers of the sale of the assets etc. were subject to acceptance by the Court, and Court had not yet accepted the offer of the higher bidder, no right, held, could be said to have vested in the said bidder to enforce the sale in its favour‑‑ Court had complete discretion to sanction the sale or not‑‑‑Such discretion of the Court was to be exercised judiciously having regard to the interest of the company and its creditors‑‑‑Directions of Court for fresh offer in the interest of company and creditors was thus in consonance of law. Section 333 of the Companies Ordinance, 1984 defines powers of the Official Liquidator. According to clause (f) thereof the Official Liquidator has been vested with the powers; "to sell the movable and immovable property and things in action of the company by public auction or private contract, with power to transfer the whole whereof, to any person or company or to sell the same in parcels." But such powers of the Official Liquidator are subject to the sanction either of the Court or of the Committee of Inspection (as the case may be), as is further indicated by the said section. " Again there is much force in the argument of Mr. Saleem Sehgal that Rule 94 of Order XXI pertains to the execution of the decree while sale by the Official Liquidator under the umbrella of ‑the Court is to be concluded and executed by the Official Liquidator during the winding up proceedings. The two procedures do not have nexus with each other as proceedings in winding up cannot be taken to be in the nature of proceedings in execution of decree. It is yet another reason that no sale certificate is required to be issued in the case. Both Mr. Saleem Sehgal and Mr. Faisal Islam, Advocates. were unanimous that the procedure as to issuance of sale certificate can only be adopted in the case or order made by the Court under sections 355 and 489 of the Ordinance for the same are to be enforced in the same manner as a decree made by the Court in a suit. In such eventuality the execution will follow as normal course and during the execution of any order if some sale is made, then Rule 94 of Order XXI would be applicable. It is, thus, obvious that no sale certificate is required to be issued in the case of sale concluded by the Official Liquidator during the course of liquidation proceedings of a company for it is only a sale‑deed or. conveyance is to be executed by the Official Liquidator as ordained by sub‑clause (f) of subsection (1) of section 333 of the Companies Ordinance, 1984.

9. I appreciate the valuable assistance rendered by Mr. Saleem Sehgal and Mr. Faisal Islam as also Mr. Ali Zafar and Mr. M.S. Baqir, Advocates for triggering the dispute and for its resolvement.

10. The one aspect of the question having been determined Mr. M.S. Baqir, Advocate was called upon to argue his particular case.

11. Mr. M.S. Baqir, Advocate in his turn argued that the total burden of his application apart, it may be appreciated that now that conveyance is to be executed by the Official Liquidator with the sanction of the Court, he may be permitted to execute the sale‑deed in regard to land and building while in regard to sale of machinery, he may be permitted to execute a receipt under the Sale of Goods Act, for it is only a sale in regard to movables. Again the argument required deeper probe for the immovable property as defined in the Transfer of Property Act (Act IV of 1882) and the Registration (Act XVI of 1908) is to be looked into to understand the meaning and scope of immovable property. Immovable property as defined in Transfer of Property Act reads as follows: "Immovable property does not include standing timber, growing crops of grass." By virtue of section 4 of the Transfer of Property Act, the chapter and section of Transfer of Property Act which relate to contract shall be taken as a part of Contract Act, 1872 and section 54, paragraphs 2 and 3, 59, 107 and 123 shall be read as supplement to the Registration Act, 1908. Section 54 of the Transfer of Property Act deals with the sale which reads as under:‑‑

54. Sale defined.‑‑Sale is a transfer of ownership in exchange for a price paid or promised or part‑paid and part‑promised. Sale how made.‑‑Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. . Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property. Contract of sale.‑‑A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not of itself create any interest in or charge on such property. Section 59 deals with the mortgage by deposit of title deeds which is required, to be registered. Section 107 deals with the contract of lease for more than one year or reserving an yearly rent, it is also required to be made by registered instrument. Similarly, section 123 deals with contract of gift which too is required to be registered. In all the sections noted above, immovable property form the subject‑matter of the contract which requires registration, therefore, the provisions of the said section are to be read as supplemental to the Registration Act, 1908. The Registration Act, on the other hand, defines immovable property as follows:‑‑ (6) "Immovable property" includes land, building, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth, hereditary allowance, rights to ways, lights, ferries and fisheries but does not include‑‑ (a) standing timber, growing crops or grass whether immediate severance thereof, is intended or not; (b) fruit upon and juice in trees whether in existence or to grow in future; and (c) machinery embedded on or attached to the earth, when dealt with apart from the land. Mr. M.S.Baqir, Advocate conceded that there cannot be a separate sale‑deed or conveyance in regard to land and building for the both are to be treated as immovable property and as one unit, therefore, the sale‑deed in regard thereto is to be executed by treating the land and building as one unit. It was, however, argued by him that the machinery installed in the mill cannot be taken to be attached to earth or permanently fasten to anything attached to the earth because it is movable and can be removed therefrom and if sub‑clause (1) of subsection (6) of section 2 of the Registration Act, 1908 is read in conjunction with the sub‑clause (c) of the subsection ibid, it would be abundantly clear that machinery embedded on or attached to earth when dealt with apart from the land cannot be treated to be immovable property, therefore, no conveyance need be executed by the Official Liquidator in regard thereto. It was submitted that simple receipt would suffice in that regard for it shall be taken to be movable property for all intent and purposes as understood under the Sale of Goods Act. He referred to his bid and submitted that he had in fact offered a composite bid in that ,regard thereby offering different sale price for the different items meaning thereby that even otherwise the machinery installed in the mill has been dealt with apart from the land. According to him he had offered a composite bid of ks.102 million and along therewith he had submitted a split up of his bid which incidentally is not available on the record. I summoned Mr. M.S. Baqir and in his presence Mr. Nazir Hussain Taskeen. Advocate one of the Official Liquidator was also summoned to verify as to whether he had submitted a composite bid as maintained by him. Mr. Nazir Hussein Taskeen, Advocate certified that the applicant had submitted separate bid for all the three items wherein he had offered a price of Rs.2.5 million for the land and Rs.2.0 million for the building while Rs.97.5 million were offered for machinery and equipment. The sale certificate issued to the applicant further confirms that Rs.2.5 million is taken to be the price of the land. Since the price of the building has not been separately offered by the petitioner nor confirmed by the Court, therefore the question became wide open as to what should be the value of the building. I looked into various papers particularly the advertisement issued by the Official Liquidator and have found that the building comprised office, godowns, machinery hall and labour colony etc. The value of the said building as assessed by the competing bidder i.e. Asher Imran Spinning Mills is Rs. one crore. Keeping in view of the description of the building existing at the site Rs.one crore was considered to be the fair and appropriate price. Confronted therewith learned counsel for the applicant accepted the same.

10. Reverting to the plea that the machinery installed in the mill could not be treated as immovable property for it had been dealt with apart from the land inasmuch as the price thereof was separately assessed and offered by the purchaser which was accepted as such, resultantly, the machinery, was agreed to be sold to the petitioner. independent of the land and building. The plea afore‑noted was sought to be supported by the applicant by the bid‑sheet (not found on the record, copy whereof had been obtained from the learned counsel because the Official Liquidator stated before me that such a bid‑sheet was filed) wherein the price of the machinery had been separately assessed and offered by the applicant which was recommended by the Official Liquidator and accepted by the Court. Learned counsel for the applicant also relied "Lokashan Jain Udyog Mandir Ltd. v. Kalooram and another" AIR 1965 Rajasthan 15 (V 52 C 7) "(Bakhshi) Ghazanfar Ali v. (Bakhshi) Muzaffar Ali" AIR 1936 Lah. 511 to support the proposition afore‑noted. The earlier mentioned case was that of a tenancy and the tenant having obtained the premises on rent proceeded to instal a press at the site. The tenancy was not a permanent or a long term tenancy but it was a monthly or a yearly one wherein it was specifically provided that the tenant would be at liberty to obtain alternative ‑accommodation for running the press but it was left open to him to remove the machinery if and when he likes to do so. In the circumstances, it was held that considering the term of tenancy between the plaintiff and the third party, there could be no question of the. machinery in the case being permanently fastened to anything which is attached to the earth nor it could be said that the said machinery was fixed with any such object as the permanent beneficial enjoyment of the building in which the press was located, therefore, it did not fulfil the essential requirement of the clause "attached to the earth". In the other case, the rule of English Law that whatever is affixed to the land was a part thereof was held to be not applicable in India in view of provisions of sections 51, 63 and 108 of the Transfer of Property Act.

11. The two cases relied by the learned counsel for the petitioner are obviously distinguishable on their own facts for in the first case the question was that of a tenant who had entered into an agreement with the lessor that he would be at liberty to remove the machinery, while in the second case the rule of English Law has not been held to be applicable in India but in both the cases noted above, the machinery installed in the factory had been dealt with apart from the land itself.

12. It would be noted that in subsection (6) of section 2 of the Registration Act, 1908, the‑expression "attached to earth" has been used and employed twice in defining the immovable property. In the main section the expression "attached to earth" has been used to include the things attached to earth in immovable property while in clause (c) of the said section the same expression has been used to exclude the machinery attached to earth from the definition of immovable property when it is dealt with apart from the land meaning thereby that movable property may become immovable property by its being attached to the earth while it may not become immovable property when it is dealt with apart from the land. It is, thus, obvious that it cannot be B laid down as an absolute rule that the machinery attached to or embedded in earth should always be treated as immovable property, therefore, the intention of the person, dealing with the said machinery shall, have to be gathered from case to case. The question of movable attached to immovable property, and whether it becomes immovable property was examined in detail in "Muhammad Ibrahim v. Northern Circars Fibre Trading Co. Coconada" AIR (31) 1944 Madras 492 and it was finally held:, "It will thus be seen that the degree and nature of the attachment is no doubt a consideration but only a minor consideration. The more important consideration is the object of the annexation which is a question of fact to be determined by the circumstances in each case. It was further observed: "We have already indicated that more important. test is to ascertain the intention of person concerned when he attaches and instals his own machinery to the land or building. The intention may be expressed or implied from the circumstances in which he attaches the machinery.", Still at another place, the learned Judge who spoke for the Court quoted another learned Judge with respect as follows: "If a thing is. embedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of immovable property. If the attachment is merely for the beneficial enjoyment for the chattel itself, then it remains chattel even though affixed for a time being so that it may be enjoyed. The question must in each case be decided according to circumstances. "

13. It flows from the abovesaid discussion that by and large the question in each case depends upon the proof as to whether the machinery has been dealt with. apart from the land and building and that what is attached with the earth is for the permanent. beneficial enjoyment of the building or the attachment is merely for the beneficial enjoyment of the chattel itself. In the instant case it is no doubt correct that the value of the machinery was separately assessed and price thereof was also offered separately which was accepted as such by the Official Liquidator, and approved by the Court, therefore, it shall be deemed to have been dealt with apart from the land and building of the mill. Again, the machinery was attached to the earth for the beneficial enjoyment of the machinery itself for propelled by energy it is the machine only which is productive and not the land. Additionally, this being a case of a company wherein winding up order had been passed, therefore, manifestly, the intention of the Official Liquidator as also that of the purchase of the machinery would matter in the last analysis and the intention p of both, the Official Liquidator as also the purchaser is manifest from the separate assessment of price and the offer that he has made which has been so approved by the Court, therefore, the machinery is held to be movable and as such can be sold to the applicant under a receipt duly executed under the law.

14. The other question as to whether the Company Bench of the Court acts as Civil Court may not be dilated upon for it is not required to be l. decided in view of the finding that no sale certificate is required to be issued to a purchaser who had purchased .the assets of the company under liquidation. As far the argument that orders passed under sections 355 and 479 of the Companies Ordinance are to be enforced in the same manner as a decree made by the Court in a suit, therefore, Order XXI would be applicable in the execution of such orders, resultantly, the Company Bench, of this Court may have to issue a sale certificate would also not be relevant for the present discussion.

15. For the reasons afore‑stated the sale‑deed in regard to land and building shall now be executed by the Official ' Liquidator for Rs.1,25,00,

000. All necessary formalities such as stamps, registration and other taxes leviable on the sale‑deed shall be complied with before presenting the same for registration. Certificate of sale already issued to the applicant shall be surrendered to the Court and it, is only thereafter that a sale‑deed shall be executed in favour of the applicant.

16. As far the machinery installed in the mill, the same shall be sold by the Official Liquidator under the receipt duly executed under the law.

17. In result, the application of the petitioner is determined and disposed of in the term afore‑stated. Q.M.H./M.A.K./H‑6/L Order accordingly.