RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & ORS.

26Copy pinpoint26. Section 22A was introduced by the Amending Act 12 B of 1994. The obvious intent of introducing the said provision was to empower the BIFR to issue any direction to the sick industrial company, its creditors and shareholders, in the interest of the company or even in public interest, directing the company not to dispose of any assets, except with the consent of the BIFR. The directions so issued are to remain in force C during the preparation and consideration of the scheme. BIFR is also vested with similar powers where it recommends to the High Court for winding up of a company. The directive issued by BIFR would remain in force upto the commencement of the proceedings for winding up before the High Court. Section 22 D is the reservoir of the statutory powers empowering the BIFR to determine a scheme, right from its presentation till its complete implementation in accordance with law, free of interjections and interference from other judicial processes. Section 22(1) deals with the execution, distress or the like E proceedings against the company's properties, including appointment of a Receiver. It also specifically provides that even a winding up petition would not be instituted and no other proceedings shall lie or proceed further, except with the consent of the BIFR. In contradistinction to this power, Section 22(3) F states that pending an enquiry or a scheme under the provisions of the Act of 1985 and even where the scheme is sanctioned, for the due implementation of such scheme, the BIFR may, by an order, declare with respect to the sick industrial company concerned that the operation of all or any G of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that H

438 SUPREME COURT REPORTS [2012] 3 S.C.R.

A all or any of the rights or privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended and shall be enforceable with such adoption and in such a manner as may be specified by the BIFR. In other words, all those instruments to which the sick industrial B company is a party, will be subject to the orders of the BIFR. Further, such proceedings can even be modified by the BIFR, of course, for the limited purpose of implementing the scheme. The declarations made by the BIFR under Section 22(3) are subject to the restrictions of time as stated under the proviso c to this section. The maximum period for which such a declaration in aggregate can continue is seven years. The legislative intent of giving an over-riding effect to the declarations of the BIFR, as contemplated under Section 22(3) of the Act of 1985, is further fortified by the language of Section 22(4), which states that any declaration made under Section 0 22(3) shall take effect notwithstanding anything contained in the Companies Act, 1956 or any other law, the memorandum and articles of association of the company or any instrument, decree, order of a court, settlement etc. Any remedy for enforcement of a right which may be available to a third party and any such proceedings before any court or tribunal shall remain stayed or be continued subject to such declaration. Section 22(4){b) brings status quo ante and in fact, makes it clear that on cessation of such a declaration, the right, privilege, obli~1ation or liability which was suspended shall become revived and enforceable as if the declaration had never been made. The proceedings will continue from the stage at which they were stayed. It can safely be perceived that the provisions of Section 22 of the Act of 1985 are self-explanatory. They would cease to operate within their own limitations and not by force of any other law, agreement, memorandum or even articles of association of the company. The purpose is so very clear that during the examination, finalization and implementation of the scheme, there should be no impediment caused to the smooth execution of the scheme of revival of the sick industrial company. It is only when the specified period of restrictions and

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 439 ORS. [SWATANTER KUMAR, J.] declarations contemplated under the provisions of the Act of A 1985 is over, that the status quo ante as it existed at the time of the consideration and finalization of the scheme, would become operative. This is done primarily with the object that the assets of the company are not diverted, wasted, taken away and/or disposed of in any manner, during the relevant period. B

27Copy pinpoint27. The powers of the BIFR under Section 22(3) can be segregated under two different heads. Firstly, the power to suspend simplicitor the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or any other instrument in force, to which the C sick industrial company is a party or which may be applicable to the sick industrial company before the date of such order. Secondly, any rights, privileges, obligations or liabilities accruing or arising before the said date, shall be enforceable with such adaptation and in such manner as may be specified by the D BIFR.

28Copy pinpoint28. This dissection clearly demonstrates the intent of the framers of law, that the BIFR has the power to even make changes in such instruments, documents etc. which create rights and liabilities vis-a-vis the sick industrial company, and before permitting them to be enforced. Such an approach alone can be justified, as otherwise the expression 'shall be enforceable with such adaptation and in such manner as may be specified by the BIFR would be meaningless. It is a settled principle of interpretation of statutes that every word and expression used by the legislature has to be given its proper and effective meaning as the legislature uses no expression without purpose or meaning. The maxim Lex Nil Frusta Jubet i.e. Law Commands nothing vainly further elucidates this principle. Of course, the power to make this declaration as already noticed is controlled by limitation of time as specified in the proviso to the Section. Lifting of such declaration by lapse of time or otherwise or in accordance with the provisions of Section 22(4) shall bring the status quo ante as if such declaration had never been made. Section 22A is obviously a power over and above H

440 SUPREME COURT REPORTS [2012] 3 S.C.R.

A the wide powers vested in BIFR under the provisions of Section 22 of the Act of 1985. Section 22 is the reservoir of the statutory powers empowering the BIFR to deal with the scheme, right from its presentation till its complete implementation in accordance with law, free of interjections and interference from other judicial processes.

29Copy pinpoint29. Section 22A of the Act of 1985 empowers the BIFR to pass injunctive or restraint orders in relation to the assets of the sick industrial company. These injunctive orders are to be in operation during the period of preparation or consideration of the scheme under Section 18 of the Act of 1985. Section 22A, thus, has a narrower scope than Section 22. Section 22 operates from the presentation of the scheme, its consideration, preparation, finalization and ultimately the implementation of the said scheme and consequent rehabilitation of the sick industrial company, while Section 22A operates only during the preparation or consideration of the scheme, or upto the commencement of the proceedings for winding up before the concerned High Court, in the event the BIFR recommends winding up proceedings. E

30Copy pinpoint30. The relevant provisions of the Act of 1985 clearly demonstrate that BIFR is vested with the power to issue - directions in the interest of the company or even in public interest, to prevent the disposal of assets of the company during the period of preparation, consideration or implementation of the scheme. Not only this, BIFR is expected to ensure proper implementation by appropriately monitoring the scheme during the entire relevant period. Sections 22 and 22A thus specify the complete jurisdiction and authority of the BIFR in relation to preparation, consideration, finalization and implementation of a revival scheme in relation to a sick industrial company.

31Copy pinpoint31. Where Section 22(1) deals with the restrictions and limitations vis-a-vis the court proceedings while Section 22(3) of the Act of 1985 deals with the agreement, intents or other obligations as stated in that provision and declarations which

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 441 ORS. [SWATANTER KUMAR, J.]

will be made by the BIFR for the purposes of finalization and effective implementation of the scheme. There, Section 22A deals with restrictions and prohibitory orders which the BIFR can pass, all for the purposes of preparation of the scheme and proper implementation and effective management of the revival of the sick industrial company. These provisions have to be read along with the provisions of Section 26 of the Act of 1985 which ousts the jurisdiction of the civil courts and vests exclusive jurisdiction for the specified purposes with the BIFR. Another relevant provision in this regard is Section 32 of the Act of 1985, which gives an overriding effect to the provisions of the Act of c 1985 over the other laws in force except the law specifically stated therein. Sections 22, 22A, 26 and 32 have to be read and construed conjointly. A common thread of legislative intent to treat this law as a special law, in contradistinction to the other laws except the laws stated in the provisions and to ensure its 0 effective implementation with utmost expeditiousness, runs through all these provisions. It also mandates that no injunction shall be granted by any court or authority in respect of an action taken or to be taken in pursuance of the powers conferred to or by under this Act. E CASE LAW

32Copy pinpoint32. In the case of Shree Vallabh Glass Works Ltd. (supra), as already noticed, this Court had taken a very wide view and given liberal constructions to the provisions of Section 22 and held that no proceedings for execution or distress or like proceedings against any of the properties of the company shall lie or be proceeded, except with the consent of the BIFR. The Court also held that the BIFR, at its discretion, may accord its approval for proceeding against the company. This view of wide interpretation was accepted by another Bench of this Court in the case of Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of Maharashtra ((1993) 2 SCC 144], wherein this Court took the view that the word 'proceedings' under Section 22(1) cannot be given a narrower or restricted meaning to limit the same to a legal proceeding and even the H

442 SUPREME COURT REPORTS [2012] 3 S.C.R.

A proceedings invoked by a financial institution under the State Financial Corporation Act were held to be covered within the ambit of Section 22(1) of the Act of 1985. A similar view was also taken in the case of Tata Davy Ltd. v. State of Orissa [AIR 1998 SC 2928]. Answering the question that steps to recover B the sales tax under Section 13A of the said Act were in the nature of proceedings by way of execution, distress or the like contemplated by Section 22(1) of the Act, this Court followed its earlier view and held that even the proceedings for recovery of tax under the State Act were covered within the scope of c Section 22(1) of the Act of 1985, and thus, could not be given effect to without approval/consent of the BIFR.

33Copy pinpoint33. As already noticed above, in the case of Corromandal Pharmaceuticals (supra), this Court had taken the view that the bar or embargo envisaged in Section 22(1 ). can apply only to D such of those cases where it is reckoned or included in the sub- judice schemes. Amounts like the sales tax which the sick industry is enabled to collect after the date of the sanction of the scheme, had to be recovered in the normal course, by the Revenue and protection of Section 22(1) was not available. E

34Copy pinpoint34. This view, however, was not clearly adopted by this Court in subsequent judgments of Jay Engineering (supra), where this Court accepted the wider connotation of the words 'proceedings' appearing in Section 22(1) where an award F passed under the Interest on Delayed Payments to Small Seate and Ancillary Industries Undertaking Act, 1993 was being executed, the Court took the view that the award could not be executed against the sick industry without the leave of the BIFR as the Act of 1985 would override the provisions of the 1993 G Act and approval of the BIFR was essential. Still in another case, Morgan Securities and Credit Pvt. Ltd. (supra), this Court had held that the Act of 1985 has an overriding effect and Section 22(3) of the Act even covers the execution of non- contractual liabilities like enforcement of an arbitral award. The Court further held that the imperative character of an enquiry H

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 443 ORS. [SWATANTER KUMAR, J.]

at the hands of the BIFR is inherent in the scheme of the Act. A The Court also expressed doubt as to whether the courts of limited jurisdiction, vested with the power of passing interim orders, could pass interim orders in exercise of its incidental power for sale of assets where the matter was pending before the BIFR. B

35Copy pinpoint35. On the analytical analysis of the above-stated dictum of this Court and the legislative purpose and object of the Act, it has to be held that on its plain reading the provisions of Sections 22(1) and 22(3) of the Act are the provisions of wide connotation and would normally bring the specified proceedings, contractual and non-contractual liabilities, within .the ambit and scope of the bar and restrictions contained in Sections 22(1) and 22(3) of the Act of 1985 respectively. The legislative intent is explicit that the BIFR has wide powers to impose restrictions in the form of declaration and even prohibitory/injunctive orders right from the stage of consideration of a scheme till its successful implementation within the ambit and scope of Sections 22(3) and 22A of the Act. Section 22 of the Act of 1985 is very significant and of wide ramifications and application. More often than not, the jurisdiction of the BIFR is being invoked, necessitated by varied actions of third parties against the sick industrial company. The proceedings, taken by way of execution, distress or the like, may have the effect of destabilizing the finalization and/or implementation of the scheme of revival under consideration of the BIFR. It appears that, the Legislature intended to ensure that no impediments are created to obstruct the finalization of the scheme by the specialized body. To protect the industrial growth and to ensure revival, this preventive provision has been enacted. The provision has an overriding effect as it contains non obstante clauses not only vis-a-vis the Companies Act but even qua any other law, even the memorandum and articles of association of the industrial company and/or any other instrument having effect under any other Act or law. These proceedings <'.annot be permitted to be taken out or continued H

444 SUPREME COURT REPORTS [2012] 3 S.C.R.

A without the consent of the BIFR or the AAIFR, as the case may be. The expression 'no proceedings' that finds place in Section 22(1) is of wide spectrum but is certainly not free of exceptions. The framers of law have given a definite meaning to the expression 'proceedings' appearing under Section 22(1) of the 8 Act of 1985. These proceedings are for winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a Receiver in respect thereof. The expression 'the like' has to be read ejusdem generis to the term c 'proceedings'. The words 'execution, distress or the like' have a definite connotation. These proceedings can have the effect of nullifying or obstructing the sanctioning or implementation of the revival scheme, as contemplated under the provisions of the Act of 1985. This is what is required to be avoided for effective implementation of the scheme. The other facet of the 0 same Section is that, no suit for recovery of money, or for enforcement of any security against the industrial company, or any guarantee in respect of any loan or advance granted to the industrial company shall lie, or be proceeded with further without the consent of the BIFR. In other words, a suit for recovery and/ E or for the stated kind of reliefs cannot lie or be proceeded further without the leave of the BIFR. Again, the intention is to protect the properties/assets of the sick industrial company, which is the subject matter of the scheme. It is difficult to state with precision the principle that would uniformly apply to all the proceedings/suits falling under Section 22(1) of the Act of 1985. Firstly, it will depend upon the facts and circumstances of a given case, it must satisfy the ingredients of Section 22(1) and fall under any of the various classes of proceedings stated thereunder. Secondly, these proceedings should have the impact of interfering with the formulation, consideration, finalization or implementation of the scheme. Once these ingredients are satisfied, normally the bar or limitation contained in Section 22(1) of the Act of 1985 would apply. For instance, execution of a decree against the assets of a company, if permitted, is bound to result in disturbing the scheme, which

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 445 ORS. [SWATANTER KUMAR, J.] has or may be framed by the BIFR. The sale of an asset during such execution or even withdrawing the money from the bank account of the company would certainly defeat the very purpose of the protection sought to be created by the Legislature under Section 22(1) of the Act of 1985. On the other hand, a proceeding taken out for possession of the tenanted premises, under the provisions of Karnataka Rent Control Act, have been held to be proceedings not falling within the ambit and scope of Section 22(1) of the Act of 1985. This was for the reason that the contractual tenancy between the company and the owner had been terminated and the company only had an c interest as a statutory tenant. Such interest was neither assignable nor transferable. This Court held that it could not be regarded as 'property' of the sick company for the purposes of the provisions of Section 22( 1) and as such, these provisions were not attracted. (M/s. Shree Chamundi Mopeds Ltd. v. 0 Church of South India Trust Association, Madras [AIR 1992 SC1439]).

36Copy pinpoint36. Referring to the facts of the present case, the land was one of the major assets of the Respondent Company and in the event the said asset was kept outside the scope of the scheme or its sale was permitted by the BIFR, probably the company could never be revived and any effort in that direction de hors such asset of the company would be in futility. Besides, the fact that the statutory protection contained in Section 22(3) was available to the company, it could be stated with more emphasis that the BIFR could even adopt and permit the transaction with such adoption as it may have deemed appropriate. The imperative nature of the functions of the BIFR under the provisions of the Act of 1985 and the overriding effect of its provisions fully support such a view. G

Overriding effect of the Act of 1985 :-

37Copy pinpoint37. This Court has taken the view in Tata Motors Ltd. [(2008) 7 sec 619] that the Act of 1985 has been enacted to secure the principles specified in Article 359 of the Constitution H

446 SUPREME COURT REPORTS [2012] 3 S.C.R.

A of India. It seeks to give effect to the larger public interest. It should be given primacy because of its higher public purpose. As the Act of 1985 is a special law and on the principle that a special law will prevail over a general law, it is permissible to contend that even if the provisions contained in Section 22(1) B read with Section 32 of the Act, giving overriding effect vis-a- vis the other laws, other than the Foreign Exchange Regulation Act, 1973 and the Urban Land Ceiling and Regulation Act, 1976 had not been there, the provisions of the general law like the Companies Act, for regulation, incorporation, winding-up etc. c of the companies would have still been overridden to the extent of inconsistency. We have already seen that this Court had, in the case of Jay Engineering (supra), taken the view that the Interest on Delayed Payments to Small Scale and Ancillary Industries Undertaking Act, 1993 shall have to give way for enforcement of the provisions of the Act of 1985. In the case 0 of Tata Davy (supra) also, the Court took the view that the State Sales Tax Act would have to be read and construed in comity to the provisions of the Act of 1985 which shall have the overriding effect. In the case of Tata Motors Ltd. v. E Pharmaceuticals Product of India Ltd. (supra), this Court was concerned with the provisions of mismanagement and oppression contained in Sections 391 and 394 of the Companies Act and whether the Company Court will have the jurisdiction to pass orders in preference to the proceedings pending before the Court under the Act of 1985. The Court F while holding the primacy of the Act of 1985 held as under: -

"SICA furthermore was enacted to secure the principles specified in Article 39 of the Constitution of India. It seeks to give effect to the larger public interest. It should be given primacy because of its higher public purpose. Section 26 of SICA bars the jurisdiction of the civil Courts.

What scheme should be prepared by the operating agency for revival and rehabilitation of the sick industrial company is within the domain of BIFR. Section 26 not only covers orders passed under SICA but also any matter which BIFR

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 447 ORS. [SWATANTER KUMAR, J.] is empowered to determine. A

23. The jurisdiction of civil court is, thus, barred in respect of any matter for which the appellate authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited." B

38Copy pinpoint38. Even in the case of NGEF Ltd. v. Chandra Developers (P) Ltd. and Anr. [(2005) 8 SCC 219], this Court specifically reiterated and with emphasis the principle that the provisions of the Act of 1985 contained non-obstante clauses: it is a special statute which is a complete code in itself and that the C jurisdiction of the Company Court in such matters would arise only when MIFR and BIFR have exercised their jurisdiction under Section 20 and 25 respectively of the Act of 1985. The provisions of SICA would prevail over the provisions of the Companies Act. D

39Copy pinpoint39. From the above judgments of this Court, the unambiguous principle of law that emerges is that the provisions of the Act of 1985 shall normally override the other laws except the laws which have been specifically excluded by the Legislature under Section 32 of the Act of 1985. The Act of E 1985 has been held to be a special statute vis-a-vis the other laws, most of which have been indicated above. In the present case, we are concerned with the provisions of the Act of 1882. It is the case of the respondent-company before us that they have got an interest in the immovable property by virtue of the F Memorandum of Understanding, Agreements dated 1st March, 2007 and 17th August, 2010 and by part performance, as they had been given possession of the land in question. It was contended that as their interests were duly protected under the provisions of the Act of 1882, the BIFR/MIFR, in exercise of G its powers under Sections 22(1), 22(3) and 22A of the Act of 1985, cannot place any restriction upon their title or interest in the immovable property. In other words, the contention is that vis-a-vis the Act of 1985, the provisions of the Act of 1882 shall prevail. H

448 SUPREME COURT REPORTS [2012) 3 S.C.R.

40Copy pinpoint40. The Act of 1882 is a general law and controls and operates in a very wide field. It was an Act enacted for and related to transfer of immovable property in India and to decide the disputes as well as to resolve the confusion and conflict, which was in existence, as the courts were forced to decide 8 the disputes according to their own notions of justice and fair play. The Act of 1882 does not have application to a particular situation or class of persons. On the contrary, the Act of 1985 is a special legislation providing for imperative functioning of specialized bodies like the BIFR and AAIFR and is intended to apply to a very specific situation, i.e., where a company is a sick industrial company. It has no application even to other different kinds of companies within the purview of the Companies Act, except sick industrial companies. The Legislature has undoubtedly given an overriding effect to the provisions of the Act of 1985 and even restricted the jurisdiction of the civil courts, as is demonstrated from the language of Sections 26 and 32 of the Act of 1985. Thus, we have no hesitation in holding that the provisions of the Act of 1985 shall prevail over the provisions of the Act of 1882.

E Discussion on Merits with reference to Factual Matrix of the Case

41Copy pinpoint41. Having dealt with the basic legal questions arising for consideration of this Court in the facts of the present case, now F we will now proceed to examine the issues of facts and law with reference to the present case. The Respondent-Company, upon some negotiations had executed a Memorandum of Understanding with the appellant-company on 13th April, 2006. A land admeasuring about 344 acres, situated in the revenue estate of villages Ambivali, Mohone, Wadavli, Atalee and G Galegaon in taluk Kalyan, District Thane was agreed to be sold on the conditions which were stated therein and it had also postulated the execution of a proper Agreement to Sell. Principal Agreement of Sale was executed on 1st March, 2007 between the parties. As certain amounts were found to have H

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 449 ORS. [SWATANTER KUMAR, J.] been incorrectly stated in the Principal Agreement and parties A intended to pre-pone the payment of instalments as per the terms of that agreement, they executed First Supplementary Agreement dated 29th September, 2007. It may be noticed here that the Respondent Company, in the meanwhile, had financial crisis and was not able to pay off its debt of nearly B Rs.147 crore as on 31st March, 2006. The company itself had approached the BIFR for declaring the company as a 'sick industrial company' and to examine the possibility of its revival through a scheme, in accordance with the provisions of the Act of 1985. c

42Copy pinpoint42. The scheme of rehabilitation in relation to the sick industrial company was presented before the Corporate Debt Restructuring (CDR) Empowered Group which was appointed by the consortium of the banks to whom large sums were due from the said company on 13th June, 2007. The scheme was D approved by the CDR on 12th December, 2007 which resulted in issuance of a letter of approval dated 21st January, 2008. Prior to the complete implementation of the revival scheme, the Respondent Company applied to the BIFR under Section 15 of the Act of 1985 for being declared as a 'sick company' on E 3rd December, 2008. During the consideration of this application, the rehabilitation scheme approved by the CDR was placed before the BIFR for its acceptance and adoption. Vide its order dated 16th July, 2009, passed under Section 17(3) of the Act of 1985, the Scheme was adopted and for the F purposes of implementation of the Scheme, the cut-off date was declared as 30th July, 2007 by the BIFR. As already noticed, the parties had entered into a Memorandum of Understanding dated 13th April, 2006 and the Agreement to Sell dated 1st March, 2007 for sale of the land belonging to the company. The G BIFR, while approving the scheme, had taken into consideration these events in relation to the sale of the land. Thereafter, the parties executed Supplementary Agreements dated 29th September, 2007 and 17th August, 2010. The Agreements provided for pre-ponement of the instalments payable in terms H

450 SUPREME COURT REPORTS [2012] 3 S.C.R.

A of the Agreements as well as giving of possession of the land to the Appellant Company. The Agreement dated 29th September, 2007 was executed when the rehabilitation scheme was pending consideration before the BIFR, while the Agreement dated 17th August, 2010 was executed subsequent B to the adoption of the Scheme by the BIFR. It appears from the record that the Second Supplementary Agreement dated 17th August, 2010 was not executed between the parties with prior approval of the BIFR. The BIFR, vide its order dated 16th July, 2009, had placed certain restrictions and had not permitted the c transfer of the land without its prior approval. It had also raised certain other queries including valuation, etc. This order was set aside by the AAIFR, which had permitted the sale of the land in favour of the Appellant Company, even during the consideration and implementation of the revival scheme. This order of the AAIFR dated 28th May, 2010 was disturbed by the 0 High Court vide its order dated 29th July, 2011. The High Court practically restored the order of BIFR, giving rise to the present appeal.

43Copy pinpoint43. The contention raised before us is that in view of the provisions of Sections 53A and 54 of the Act of 1882, the title in the property in question is vested in the Respondent- Company and they are entitled to transfer of the property, free from any restrictions or limitations. As such, the order of the High Court is liable to be set aside and that of the AAIFR be restored. In view of our afore-stated discussion and the reasons to follow, we are unable to accept this contention entirely or even in part for that matter. Firstly, we may examine whether an agreement to sell in relation to an immovable property transfers or creates any right or title in the immovable property itself in favour of the purchaser. Section 54 defines 'Sale' as a transfer of ownership in exchange for price paid or promised or part-paid and part-promised. Such a transfer of tangible immovable property of the value of Rs.100/- and upwards can be made only by a registered instrument. The H 'contract for sale' has been explained under this very provision

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 451 ORS. [SWATANTER KUMAR. J.]

as follows: - A

"Contract for sale:- A contract for the sale of immoveable 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 B property."

44Copy pinpoint44. Thus, on a plain reading of the statutory provisions, it is clear that an agreement for sale or an agreement to sell itself does not create any interest or charge in such property. Mulla c on 'Transfer of Property Act', 9th Edition, page 181, clearly states that Section 54 enacts that an agreement for the sale of land does not itself create an interest in land. There was a considerable conflict of decisions as to the application of the rule against perpetuity to such agreements. This conflict has D been resolved by judgment of this Court in the case of Rambaran Prosad vs. Ram Mohit Hazra [AIR 1967 SC 744] where this Court held that a mere contract for sale of immovable property does not create any interest in the immovable property. In this case, this Court-held as under:- E "10. In the case of an agreement for sale entered into prior to the passing of the Transfer of Property Act, it was the accepted doctrine in India that the agreement created an interest in the land itself in favour of the purchaser. For instance, in Fati Chand Sahu v. Li/ambar Sing Das (1871) F 9 B.L.R. 433 a suit for specific performance of a contract for sale was dismissed on the ground that the agreement, which was held to create an interest in the land, was not registered under s. 17, clause(2) of the Indian Registration Act of 1866. Following this principle, Markby J. in Tripoota G Soonduree v. Juggur Nath Dutt (1875) 24 W.R. 321 expressed the opinion that a covenant for pre~emption contained in a deed of partition, which was unlimited in point of time, was not enforceable in law. The same view was taken by Baker J. in Allibhai Mahomed Akuji v. Dada H

452 SUPREME COURT REPORTS [2012] 3 S.C.R.

A Alli /sap A.L.R. 1931 Born. 578 where the option of purchase was contained in a contract entered into before the passing of the Transfer of Property Act. The decision of the Judicial Committee in Maharaj Bahadur Singh v. Bal Chanad 48 I.A. 376 was also a decision relating to a B contract of the year 1872. In that case, the proprietor of a hill entered into an agreement with a society of Jains that, if the latter would require a site thereon for the erection of . a temple, he and his heirs would grant the site free of cost. The proprietor afterwards alienated the hill. The society, through their representatives, sued the alienees for c possession of a site defined by boundaries, alleging notice to the proprietor requiring that site and that they had taken possession, but been dispossessed. It was held by the Judicial Committee that the suit must fail. The Judicial Committee was of the opinion that the agreement D conferred on the society no present estate or interest in the site, and was unenforceable as a covenant, since it did not run with the land, and infringed the rule against perpetuity. Lord Buckmaster who pronounced the opinion of the Judicial Committee observes as follows: E "Further, if the case be regarded in another light - namely, an agreement to grant in the future whatever land might be selected as a site for a temple - as the only interest created would be one to take effect by entry at a later date, and as this date is uncertain, the provision is obviously bad as offending the rule against perpetuities, for the interest would not then vest in present, but would vest at the expiration of an indefinite time which might extend beyond the expiration of the proper period."

(11) But there has been a change in the legal position in India since the passing of the Transfer of Property Act. Section 54 of the Act states that a contract for sale of immovable property "does not, of itself, create any interest

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 453 ORS. [SWATANTER KUMAR, J.] in or charge on such property". Section 40 of the Act is also important and reads as follows: "40. Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable 8 property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or

Where a third person is entitled to the benefit of an obligation arising out of contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands." The second paragraph of s. 40 taken with the illustration establishes two propositions: ( 1) that a E contract for sale does not create any interest in the land, but is annexed to the ownership of the land and (2) that the obligation can be enforced against a subsequent gratuitous transferee from the vendor or a transferee for value but with notice. Section 14 F of the Act states as follows: "14. No transfer of property can operate to create an interest which is to take effect after the lifetime of one or more persons living at the date G of such transfer, and the minority of some person who shall be in existence at the expiration of that . period, and to whom, if he attains full age, the interest created is to belong." Reading S. 14 along with S. 54 of the Transfer of Property H

454 SUPREME COURT REPORTS [2012] 3 S.C.R.

A Act its manifest that a mere contract for sale of immovable property does not create any interest in the immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to B be exercised. It is true that the second paragraph of s. 40 of the Transfer of Property Act make a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee c of the land who takes from the promiser either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract, for it can be enforced against an assignee with notice. There is a superficial kind of resemblance between the personal obligation created by the contract of sale described under s. 40 of the Act which arises out of the contract, and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon and the equitable interest of the person purchasing under the English Law; in that both these rights are liable to be defeated by a purchaser for value without , notice. But the analogy cannot be carried further and the rule against perpetuity which applies to equitable estates in English law cannot be applied to a covenant of pre- emption because s. 40 of the statute does not make the covenant enforceable against the assignee on the footing that it creates an interest in the land."

45Copy pinpoint45. This very view was reiterated by this Court in the cases of State of UP. v. District Judge and Ors. [AIR 1997 SC 53[; G Dharma Naika v. Rama Naika [AIR 2008 SC 1276] and Mrs. Saradamani Kandappan vs. Rajalakshmi & Ors. [JT 2011 (8) SC 129].

46Copy pinpoint46. Heavy reliance was placed by the learned counsel appearing for the Respondent-Company, upon the provisions H

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 455 ORS. [SWATANTER KUMAR, J.]

of Section 53A of the Act of 1882 to substantiate his argument that in part performance of the contract, possession of the property having been given, the execution of the title documents and transfer of the property in its favour could not be hampered or controlled by the BIFR in exercise of its powers under Section 22(3) of the Act of 1985. We are not called upon in this case to adjudicate upon the merits or otherwise the rights and liabilities of the parties arising out of the agreement dated 1st March, 2007 or the agreements entered into subsequent thereto. We would also not like to venture upon and decide whether the second supplementary agreement dated 17th c August, 2010 vide which the payment of intallments was pre- poned and the possession of the land in question is alleged to have been given to the Appellant-Company is a valid, enforceable and its consequences in law. Suffices it to note that memorandum of understanding and agreement to sell the land D belonging to the company between the appellant and the respondent-company was signed prior to the presentation of the scheme before the BIFR. However, second supplementary agreement was executed not only subsequent to the presentation of the scheme before the BIFR but even after the E. BIFR had passed an order under Section 17(3) of the Act of

1985. It cannot be disputed that even the sale proceeds received under the agreements have been utilized for the revival of the company to a large extent. The agreement with the workers dated 5th September, 2008 stands testimony to this fact. Once the asset of the company and/or its sale proceeds have been integral part of the formation and finalization of the revival scheme, such transaction by any stretch of imagination cannot be stated to be beyond the ambit and scope of Section 22(3) of the Act of 1985. Thus BIFR has the power to issue jeclarations in relation to contracts, agreements, settlements, awards, standing orders or even other instruments in force to iNhich the sick industrial company is a party. The power to suspend or power to enforce the same subject to such adaptations as the BIFR may consider appropriate is a power :>f great magnitude and scope, the only restriction thereupon H

456 SUPREME COURT REPORTS [2012] 3 S.C.R.

A is as contemplated in the proviso to Section 22(3) of the Act of 1985.

47Copy pinpoint47. The provisions of Section 53A of 1882 Act recognize a right of a transferee, where a transferor has given and the transferee has taken possession of the property or any part 8 thereof. Even this provision does not create title of the transferee in the property in question but gives him a very limited right, that too, subject to the satisfaction of the conditions as stated in Section 53A of the Act of 1882 itself. In the case of State of C UP. v. District Judge (supra), this Court, while deliberating upon the rights emerging from Section ~3A of the Act of 1882, held as under:

" ... That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said land till they are legally conveyed by Sale Deed to the proposed transferees."

48Copy pinpoint48. Thus, even if the part performance of the agreement is accepted, still no title is created in favour of the Respondent- Company. Provisions of Section 53A would also not, in any way, alter the position of the Act of 1985 having an overriding effect vis-a-vis the provisions of the Act of 1882. We have already held that the provisions of Act of 1985 shall have precedence and overriding effect over the provisions of the Act of 1882.

49Copy pinpoint49. This brings us to the last and final question arising for consideration of this Court in the present case, that is, whether in the facts and circumstances of the case, the BIFR had the jurisdiction to issue a direction or make a declaration in relation to the agreement in question in exercise of the powers vested. H in it under Section 22(3) of the Act of 1985 and, if answer to

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 457 ORS. [SWATANTER KUMAR, J.] the above is in the affirmative, whether the order dated 16th A July, 2009 of the BIFR and that of the High Court dated 29th July, 2011 are unsustainable on facts? The BIFR vide its order dated 16th July, 2009, after declaring the Respondent- Company as a sick company and appointing the Punjab National Bank as the Operating Agency, had fixed the cut off B date as 30th July, 2007, as indicated in the CDR Scheme. The CDR scheme had been approved, after taking into consideration the agreement to sell and the sale proceeds likely to be received therefrom. The BIFR had passed certain directions/declarations in the order passed under Section 17(3) c of the Act of 1985 requiring the company to state clearly the details of the land to be sold including survey numbers as well as the remaining land with the company and confirming if the remaining land was adequate for functioning and viability of the company on long term basis. The BIFR raised the query whether all the secured creditors who had charge over the land, had approved the sale of 350 acres of land belonging to the respondent-company at Kalyan, Thane for a sum of Rs.166.40 crore and for entering into memorandum of understanding with the appellant company in that behalf. Besides issuing a directive that assets including investments will require prior approval of the BIFR as the company was under the purview of SICA, it also issued a clear prohibitory order requiring the secured creditors not to take any coercive steps against the company without prior permission of the BIFR. This order of the BIFR was therefore passed clearly at the stage of the consideration of the revival scheme which had been approved by the CDR Group as well as the secured creditors. The scheme for revival of the company on long term basis, thus, was primarily dependent upon the sale proceeds of the land in question on the one hand and the utility of the remaining land for revival of the company on the other. To put it simply, the land was the paramount asset of the company for its revival and successful implementation of the scheme in accordance with law. The asset was duly taken into consideration in formulation of the scheme as contemplated under Sections 17 and 18 of the Act of 1985 and H

458 SUPREME COURT REPORTS [2012] 3 S.C.R.

A appropriate directions, prohibitory orders were issued within the ambit and scope of Sections 22(1), 22(3) and 22A of the Act of 1985. In view of the clear statement of law, as afore- recorded, and facts of the present case, we are unable to find any merit in the submission of the Respondent-Company that the BIFR had no jurisdiction to pass such directives.

50Copy pinpoint50. AAIFR had disturbed the above order and held that the contract between the parties could not be suspended under Section 22(3) and it was not in the interest of the Respondent- Company. In other words, it had permitted the sale to be completed without any restriction. This order was set aside and the order of the BIFR was restored by the High Court. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent-Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of the Act of

1985. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent-Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed.

51Copy pinpoint51. The principle of law that emerges from the afore- referred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick

RAHEJA UNVIERSAL LIMITED v. NRC LIMITED & 459 ORS. [SWATANTER KUMAR, J.] industrial company undertaken by a specialized body like the A BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as pre- ordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/ AAIFR to issue directives, declarations and prohibitory orders B within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22A of the Act of 1985.

52Copy pinpoint52. An objection to the maintainability of a composite petition, taken before the High Court, has been reiterated before this Court, of course, half-heartedly. Argument is that C Article 227 vests the High Court with supervisory powers while Article 226 is the reservoir of extra-ordinary jurisdiction of the High Courts to issue prerogative writs and orders and, as such, a joint petition under both these Articles could not be maintainable. D

53Copy pinpoint53. Reliance has been placed in this regard to the case of Sha/ini Shyam Sheffy & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329]. This objection was neither pressed before us during the course of arguments nor do we consider it E necessary to decide this issue in view of the facts and · circumstances of the present case and the fact that we have decided the entire matter on merits.

54Copy pinpoint54. For the reasons afore-recorded, the present appeals are dismissed. The order of the BIFR dated 16th July, 2009 F which has merged into the order of the High Court dated 29th July, 2011 is maintained while that of the AAIFR dated 28th May, 2010 is set aside. The parties are directed to appear before the BIFR which shall proceed with the matter in accordance with law. However, we express a poised hope that G the BIFR would deal with and dispose of the matter expeditiously.

N.J. Appeals dismissed. H