D. A. MEHTA, J. ( 1 ) THE applicant, a Limited Company, has in support of this application by the Judges 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 Judges 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. 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. ( 4 ) WHEN the application was listed for hearing from time to time the Company Court passed various orders including issuance of direction to the Official Liquidator to file report as to whether the properties in question, viz. 4 D. G. Sets, were under charge of any of the secured creditors or not. The Official Liquidator has filed two reports dated 24/7/2001 and 19/9/2001. In the first report 24/7/2001, it is stated that IDBI i. e. respondent No. 2, has a charge over movables and immovables, plant and machinery, spare tools, accessories and other movable present and future. ( 5 ) ON 17/8/2001 the Company Court (Coram:mr. Justice C. K. Buch) passed the following order :"heard ld. counsel Mr. Sandeep Singhi for Singhi and Co. for respondent No. 4 ICICI, Mr. R. M. Desai, ld. counsel for respondent No. 2 IDBI. The grievance of the secured creditors is that the lease-deeds produced by the applicant for the machineries mentioned in the application is not adequately stamped, that entire lease-deeds are also not produced as the annexures to the lease-deeds are not made available. UNDER the circumstances, the applicant Company is directed to produce annexures annexed to the lease-deeds so that actual lease rental value can be calculated. The applicant is also directed to clarify as to on what date the applicant has received lease rent. The applicant Company is also directed to clarify whether any subsequent lease deed has been executed or there has been any alteration or modification in the rental amount. O. L. is also directed to see that the report is made available to the Court on the strength of the record available. For this purpose, he is permitted to depute any responsible person from his office at the place where the record of the applicant Company lies and also to ask for details from the secured creditors, if the same are available to them. For this purpose, he is permitted to depute any responsible person from his office at the place where the record of the applicant Company lies and also to ask for details from the secured creditors, if the same are available to them. THE question of liability to pay pro-rata share for the expenses qua watch and ward staff also shall have to be decided, but this can be determined if the case of the applicant Company is accepted. ( 6 ) ). IN the second report of 19/9/2001 the Official Liquidator has stated that a person from his office had been deputed to the registered office and factory premises of the Company and on verification of records two files pertaining to the D. G. Sets were found. On scrutiny of the said files various invoices and challans which were available in the files have been annexed with the report by the Official Liquidator. Furthermore, in the said report it is stated that : "original lease agreement is not traceable in the records of the Company (in liquidation)". ( 7 ) ). AT the time of hearing Mr. Sandeep Singhi appearing for ICICI i. e. respondent No. 4 raised preliminary objection that the two lease deeds were insufficiently stamped and the same should be impounded as per provision of Section 33 of the Bombay Stamp Act,1958. It was submitted that as per the Schedule, Article 30 LEASE DEED was liable to stamp duty under clause (a) (ii) and the duty would be same as a BOND viz. Article 14 of the Schedule. Inviting attention of the Court to the additional affidavit filed by the applicant on 9/10/2001 and Annexures "a", "b" and "c" to the said affidavit, it was submitted that taking into consideration that the monthly rentals were Rs. 6,38,045/and Rs. 5,07,728/-, it was apparent that the lease deeds were not duly stamped. Zerox copies of the lease deeds which were produced at Annexures "b" and "d" respectively show that each deed bore the stamp duty of Rs. 50. 00 only and hence, the Court should exercise its jurisdiction and powers as per Section 33 (2) and clause (b) of the Proviso under the said sub-section. Zerox copies of the lease deeds which were produced at Annexures "b" and "d" respectively show that each deed bore the stamp duty of Rs. 50. 00 only and hence, the Court should exercise its jurisdiction and powers as per Section 33 (2) and clause (b) of the Proviso under the said sub-section. It was contended that once the lease agreements were not admitted in evidence the applicant could not be said to have made out any case for return of the machineries in question and in so far as the payment of lease rental is concerned the applicant company must await its turn as unsecured creditor after lodging appropriate claim with the Official Liquidator. Mr. Singhi also submitted that as per provisions of Section 43 of the Bombay Stamp Act,1958 it was open to the applicant to make good the short fall in the stamp duty and also penalty, if levied, and recover the same from the person who was responsible under the Act to pay the said duty, and unless the applicant made these payments, mainly payment of appropriate stamp duty, it would not be possible for the Court to take the lease agreements in evidence and act upon the same. ( 8 ) ). MR. R. M. DESAI, appearing for respondent No. 2 IDBI supported the stand of Mr. Singhi and also submitted that till point of time the Company was taken into liquidation no demand for rental was shown to have been made by the applicant Company and the same should not be considered at this stage. ( 9 ) ). MR. S. N. SOPARKAR, appearing on behalf of the applicant Company submitted that the applicant believes that the lease agreements had been executed after paying proper stamp duty and the preliminary objection should not be permitted to thwart the legitimate claim of the applicant. In the alternative, Mr. Soparkar submitted that even if the lease agreements are kept out of consideration the case of the applicant was supported by the various invoices produced by the applicant and the said invoices were borne out by the copies which were available in the files of the Company and which were produced along with the report of the Official Liquidator. Mr. Soparkar submitted that even if the lease agreements are kept out of consideration the case of the applicant was supported by the various invoices produced by the applicant and the said invoices were borne out by the copies which were available in the files of the Company and which were produced along with the report of the Official Liquidator. Mr. Soparkar also referred to the two schedules of equipment under lease being Annexures "a" and "b", the additional affidavit dated 9/10/2001 as well as letter dated 11/1/1998 issued by the Company in favour of the applicant to contend that the ownership of the D. G. Sets as being of the applicant stood established and that the same had been leased out to the Company was also proved by these documents without reference to the lease deeds. It was therefore submitted that even if the preliminary objection of not admitting the lease deeds in evidence is upheld the applicant Company must be granted relief as prayed for on the basis of these undisputed documents which went to show that the applicant Company was the lessor and the lessee was the Company. In the alternative, it was submitted that the applicant Company may be permitted to lift the D. G. Sets after giving an undertaking to the Official Liquidator that the applicant Company shall pay the necessary duty and the penalty, if levied as and when called upon to do so, if the lease agreements produced on the record of this application were impounded and subsequently adjudicated upon by the authority for ascertaining the proper duty. ( 10 ) ). IN the affidavit dated 14/3/2001 the entire case of the applicant is based upon the terms of the lease agreement viz. clause 7:1:3 and this is what is stated in para 4 :"4. The company had failed and/or neglected to make the payment of lease rentals. That apart, the company is now taken into liquidation and the opponent is appointed as its liquidator. Under Clause 7. 1. 3 of the lease agreement, if a winding up petition was presented against the company or if a receiver is appointed of the whole or part of the assets, properties or undertakings, both the lease agreements stand terminated. In that view, the applicant is entitled to recover back the leased assets" ( 11 ) ). Under Clause 7. 1. 3 of the lease agreement, if a winding up petition was presented against the company or if a receiver is appointed of the whole or part of the assets, properties or undertakings, both the lease agreements stand terminated. In that view, the applicant is entitled to recover back the leased assets" ( 11 ) ). DURING the course of hearing great emphasis was placed by Mr. Soparkar on letter dated 11/1/1998. The said letter reads as under :"date : 11/01/1998. TO, ATMA NATURAL FIBRES PRIVATE. LTD. 1st Floor, Chitra Ami Apartment, Ashram Road, Ahmedabad - 380 009. DEAR Sir,sub : lease rental for the D. G. Sets installed at our premises under lease agreements. WE refer to your letter dated 7/01/1998 in reference to your demand for lease rental for the D. G. Set installed at our premises under lease agreement dated 07. 06. 1997 and 20. 11. 1997 respectively. While appreciating your difficulty for not receiving lease rental instalments, we have to kindly inform you that we have been putting our best efforts to run the mill. However, due to various past liabilities including wages to the workers and other pressing payments, we have not been able to spare funds towards lease rentals and therefore we request you to kindly bear with us for some more time as we are making separate arrangement for the funds towards your overdue instalments. We refer to the telephonic talk your Mr. Jigerbhai had with our Engineer, we do appreciate your anxiety, however, since we are in the process of the consolidation, taking away D. G. Set at this juncture would put us into great difficult. We do admit that the said D. G. Set taken under above referred lease agreements are your absolute property and we have never claimed to be the owner of the said property. We had simply requested you to kindly bear with us for some more time and do not take any action which may further precipitate hardship to us. THANKING you, Yours faithfully, For, THE MAHENDRA MILLS LTD. Sd/- DIRECTOR " ( 12 ) ). THEREFORE, as can be seen the case of the applicant is primarily based on termination of the lease agreements by virtue of clause 7 which deals with various contingencies pertaining to termination. THANKING you, Yours faithfully, For, THE MAHENDRA MILLS LTD. Sd/- DIRECTOR " ( 12 ) ). THEREFORE, as can be seen the case of the applicant is primarily based on termination of the lease agreements by virtue of clause 7 which deals with various contingencies pertaining to termination. Even the aforesaid letter dated 11/1/1998 specifically goes to show that the subject was lease rentals for the D. G. Sets installed under the lease agreements. Even in the body of the letter, two lease agreements have been referred to at two places as can be seen from the emphasis supplied. Therefore, if the lease deeds are kept out of consideration the evidence on which reliance was placed on behalf of the applicant would not carry the case of the applicant any further. Though the said invoices specifically show in the column : name and address of customer the applicant Company as lessor and in the column of name and address of consumer the name of the Company as lessee from the said invoices it does not flow whether the lease came to an end, if yes, at what point of time, and lastly that lease rentals as submitted under the lease agreements had not been paid by the Company. The two schedules of equipment under lease produced as Annexures "a" and "b" to the additional affidavit dated 9/10/2001 do not give any indication as to when the lease was to terminate nor as to whether the rent was outstanding. More important is that they are schedule to the lease agreement and in absence of a lease agreement being submitted as evidence it is not possible to admit the schedule as they are not documents which can stand independently of the principal document to which they are schedules. Therefore, it is not possible to accept the contention of Mr. Soparkar that the applicant Company had established its case even dehors the lease agreement. ( 13 ) THEREFORE, in so far as the prayer to pay over the outstanding lease rentals is concerned, it would not be possible to grant the same. It would be open to the applicant Company to lodge appropriate claim with the Official Liquidator and await its turn as unsecured creditor. ( 13 ) THEREFORE, in so far as the prayer to pay over the outstanding lease rentals is concerned, it would not be possible to grant the same. It would be open to the applicant Company to lodge appropriate claim with the Official Liquidator and await its turn as unsecured creditor. ( 14 ) HOWEVER, even if the lease agreements, the schedules thereto and the letter dated 11/1/1998 relied upon by the applicant Company are to be ignored, yet the various invoices as produced by the applicant Company go to show that the applicant Company was admittedly the owner of the 4 D. G. Sets. It is necessary to bear in mind the fact that copies of these very invoices were available at the end of the Company as stated by the Official Liquidator in his report. Further more, the invoices specifically show that the applicant Company was the lessor and the Company was the lessee. Inspite of this situation, the applicant Company is not in a position to establish the termination of lease in absence of the lease agreements being taken into consideration. In this connection, the contention of Mr. Soparkar to the effect that the 4 D. G. Sets are of no use to the Official Liquidator as the Company is not carrying on any activity and hence the same must be returned to the applicant Company merits consideration. There is one more aspect to the matter, namely, at the time of hearing it was an admitted position that no charge was created, hence, none was existing on the 4 D. G. Sets. Hence, the ownership of the applicant Company is established. There is no contest. The Official Liquidator then cannot retain such assets which do not belong to the Company. In light of this situation, it would be in the interest of justice if it is ordered that the 4 D. G. Sets be returned by the Official Liquidator to the applicant Company subject to the following condition : the applicant Company shall submit an undertaking to the effect that as and when the adjudication process about the correct stamp duty in relation to the two lease agreements is over and if it is found that any stamp duty and penalty is payable, the applicant Company shall make necessary payment within the stipulated period as directed by the appropriate authority without prejudice to its rights and contentions. The undertaking shall be accompanied by a bank guarantee for a sum of Rs. 15 lacs in favour of the Registrar of this Court and the said Bank Guarantee shall be encashed in the event the undertaking is not complied with by the applicant Company when called upon to do so. This undertaking shall be filed with the Registrar of this Court and an authenticated copy shall also be filed with the Official Liquidator before lifting the 4 D. G. Sets. The Official Liquidator shall permit the applicant Company to lift the 4 D. G. Sets after receiving the undertaking as aforesaid. ( 15 ) ). IN so far as the value of stamp used for entering into lease agreement, prima facie, it appears that the preliminary objection raised on behalf of the secured creditors requires consideration. In light of clause (b) of the Proviso to Section 33 (2) of the Bombay Stamp Act,1958, the Joint Registrar of this Court is directed to either examine and impound the two lease agreements [annexures "b" and "d" respectively to the application] himself or through a responsible officer under his supervision and take appropriate action in this regard. ( 16 ) ). This application is accordingly disposed of in the aforesaid terms. There shall be no order as to costs. .