TMI Blog1959 (11) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and the order passed by Mr. Justice Brij Mohan Lall restored with costs in this court and in the High Court. - 28 OF 1958 - - - Dated:- 10-11-1959 - GAJENDRAGADKAR, SUBBA RAO AND J. C. SHAH, JJ. H.N. Sanyal and N.C. Sen for the Appellant. A.V. Viswanatha Sastri, Mrs. E. Udayaratnam and S.S. Shukla for the Respondent. JUDGMENT Shah, J. The U.P. Union Bank Ltd. (which will hereinafter be referred to as the bank) was in occupation as a tenant of a building in Agra town belonging to the respondent at a monthly rental of Rs. 325 and Rs. 10 as municipal taxes. The bank made default in paying the rent accruing due and the respondent filed Suit No. 810 of 1949 in the Court of the Munsiff at Agra for a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 30, 1951, Mr. Justice Mootham directed as follows: "In the result I hold that the petitioner is entitled to recover rent from the bank at the rate of Rs. 325 per mensem from 1st October, 1949, up to the date on which the official liquidators give the petitioner (the landlord) such possession of the premises as will, in law, terminate the bank's tenancy." Against this order, the official liquidators preferred an appeal being Special Appeal No. 17 of 1952 to a Division Bench of the High Court. On April 23, 1953, the respondent applied to the Joint Registrar of the High Court to issue a certificate of non-satisfaction and to transfer the order to the Court of the Civil Judge of Allahabad for execution. The Joint Registrar issued a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquidators having retained the bank's premises in their occupation, by virtue of the proviso to rule 97 framed by the High Court, the respondent was entitled to receive the rent due to him in full and was not liable to share the assets of the bank pro rata with the other ordinary creditors. Against the order passed by the High Court, this appeal has been preferred with the certificate of the High Court. By his order Mr. Justice Mootham merely declared the liability of the bank to pay the rent accrued due since October 1, 1949; there is no direction for payment of the amount, and it is not necessary to consider the plea raised by counsel for the respondent that the order being virtually one under section 45B of the Banking Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the company, or the official liquidator of rent during the period of the company's or the official liquidator's occupation " for the rent accruing due in respect of the premises which remained in the occupation of the official liquidators, the respondent was entitled to preferential payment. The operative part of the rule deals with the rent or other payment in arrears till the date of winding up. By the proviso, it is declared that the right of the landlord to claim payment by the company of the rent accruing due thereafter is not to be prejudiced. The proviso merely affirms the right of the landlord to claim payment of rent accruing due since the date of winding up. It does not deal with any question of priority in payment of debts. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies, of unprofitable contracts or of any other property that is unsaleable or not readily saleable. The disclaimer operates to determine as from the date of disclaimer the rights, interests and liabilities of the company and the property of the company, in or in respect of the property disclaimed. By section 230A, clause (4), liberty is reserved to persons interested in the property requiring the liquidator to decide whether he will or will not disclaim. It is also open to the court under sub-section (5) of section 230A on the application of any person entitled to the benefit or subject to the burden of a contract made with the company to make an order rescinding the contract on such terms as to payment of damages for non-performance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de between property which remains in the occupation of the liquidator after the winding up when the occupation is shown to be for the purpose of liquidation and property which merely remains with the liquidator, he having abstained from trying to get rid of the same and it does not appear or is not shown that the property was used for the purpose of winding up. The High Court held on the facts that the liquidators had remained in occupation of the premises not for the purpose of winding up but "because they could not think of any suitable method of getting rid of the premises in spite of all their desire to do so." It was pointed out that the bank had closed its business and the liquidators were not carrying on any business after the wind ..... X X X X Extracts X X X X X X X X Extracts X X X X
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