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TMI Blog1965 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ughters, applicants Nos. 1 to 5. On the 2nd day of December, 1958, the Osier Electric Lamp Manufacturing Company was directed to be wound up and the official liquidator of this hon'ble court became the liquidator of the said company. On the 19th day of September, 1961, the said tenancy was duly determined by serving a notice on the official liquidator. The official liquidator has however not given vacant possession of the said premises. On or about the 10th day of April, 1964, the applicants applied for an order that leave be granted to the opponents to file the suit in the court of Small Causes, Bombay, against the official liquidator of this hon'ble court as the liquidator of M/s. Osier Electric Lamp Manufacturing Company (in liquidation) (1) for ejectment and for such other reliefs as the applicants in the premises be entitled to. (2) Such further or other order be made as this hon'ble court may deem proper and fit. (3) The costs of and incidental to this application be costs in the suit intended to be filed by the applicants as aforesaid. Promotho Nath Saha filed an affidavit on behalf of the official liquidator, High Court, Calcutta. He admitted that a notice dated 19th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of December, 1958. The said company was in possession of the said flat on the 2nd day of December, 1958, as a tenant if the averments of the said affidavit are correct. Hence, in my view, it cannot be said, upon the facts stated by the applicants, that the allegations do not disclose a cause of action, though it must be conceded that the averments are far from explicit and clear. Mr. Sen, in the alternative, submitted that this court has exclusive jurisdiction to try and hear this suit. Consequently, no leave should be given to file the suit in Bombay. Mr. Ghosh, learned counsel, on the other hand, submitted that, in view of the provisions of section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, as modified up to the 15th November, 1962, the City Civil Court of Bombay has exclusive jurisdiction to try the suit. In order to appreciate these rival contentions, it would be preferable to set out section 28 of the said Bombay Act and section 466 of the Companies Act. The relevant portion of section 28 of the Bombay Act is as follows: "(1) Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment) Act, 1960. (3) Any suit or proceeding by or against the company which is pending in any court other than that in which the winding up of the company is proceeding may, notwithstanding anything contained in any other law for the time being in force, be transferred to and disposed of by that court. (4) Nothing in sub-section (1) or sub-section (3) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court." Section 28(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, contained these significant words in clause ( i ) "Notwithstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason the suit or proceeding would not, but for this provision, be within the jurisdiction ." and in clause ( b ) "no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question." Therefore, it is crystal clear that under the said Bombay Act, the Court of Small Causes, Bombay, has exclusive jurisdiction to try this suit. It is now necessary to turn to the Companies Act, 1956. Clauses (1) and (3) of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) proceeding as it does, that suits, claims, questions and applications may be filed or raised in a court other than the winding-up court even after the commencement of the Companies (Amendment) Act, 1960, presupposes concurrent jurisdiction of the winding-up court and any other competent court. That this is so is made patent by clause (3) which confers discretionary power or jurisdiction to the winding-up court to transfer such claim, question and application pending in a court other than the winding-up court. Therefore, in my opinion, the winding-up court has concurrent jurisdiction and not exclusive jurisdiction. The Legislature has evidently enacted section 446 in order to keep down the costs of winding up and for early disposal of the matters. The Bombay Act again has been enacted to reduce the expenses of the litigants of suits of certain nature and also expedite the hearing of such suits. Therefore, in granting leave, the objects of both the Acts must be kept in view. It is now necessary to consider whether the order should be an unconditional order or a conditional order. The property is situate in Bombay, the lease was given in Bombay and the monthly tenancy was cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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