9911796707
TMI Blog1984 (6) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... 65,235.85 per month. The company defaulted in payment of rent and other charges to the LIC from April 1,1974. The LIC by its advocate's letter forwarded to the company a statement of the outstanding dues of the company to the LIC amounting to about Rs. 10,00,000 from April 1, 1974, up to July, 1976. On July 27, 1976, the LIC terminated the lease of the company in respect of the said building being premises No. 12, Chowringhee Road and No. 1, Chowringhee Palace. Calcutta, by serving on the company a notice calling upon it to quit and vacate and deliver vacant and peaceful possession of the building. Thereafter, on March 12, 1977, the LIC also served on the company a statutory notice under section 434 of the Companies Act. The LIC also filed a winding-up petition before a company court judge of this court and obtained an order for the winding-up of the company. The said order, however, was stayed by the appeal court in the appeal preferred by the company. On March 25, 1980, the company was, however, directed to be wound up on an application for winding-up of one Md. Noor Navi and the official liquidator was directed by the court to take possession of the books, documents and assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of winding-up of the company and for the stay of the order of disclaimer of the hotel building of the company. Further, it was prayed that the LIC should be directed not to take possession or occupy and/or dispose of in any manner whatsoever the hotel building of the company. D. K. Sen J., by his order dated December 20, 1983, dismissed the said application of the appellants. At this stage, it may be stated that after the appellants filed the said application under sections 446 and 466 of the Companies Act on July 27, 1983, on the next day, that is, on July 28, 1983, the Government of West Bengal issued a notice under section 3 of the West Bengal Relief Undertakings (Special Provisions) Act, 1972, hereinafter referred to as the Relief Undertakings Act, declaring the company as a relief undertaking with effect from that date for a period up to January 27, 1984. On the said day, another notification was issued by the State Government under section 4 of the Relief Undertakings Act. Be that as it may, the appellants being aggrieved by the judgment and order dated December 20, 1983, of the learned judge preferred the instant appeal. Appellant No. 1, Maneck Noshirwan Kaka, cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e LIC. The winding-up order has been made on March 17, 1980, and the transfer of shares by appellants Nos. 2 and 3 to appellant No. 1 having been made long thereafter without any direction of the court must be held to be void. It is true that appellants Nos. 2 and 3 are the contributories of the company and the application may be said to be maintainable at their instance. Both the appellants Nos. 2 and 3 were also parties in the application under sections 446 and 466 of the Companies Act. It is appellant No. 1 who wants to revive the company and run the hotel business. Appellants Nos. 2 and 3 do not seem to be interested in the matter. Moreover, under section 466, it is discretionary with the court to stay the winding-up proceeding. As the transfer of shares to appellant No. 1 by appellants Nos. 2 and 3 is void, the court may not stay the winding-up proceeding. Theoretically, as appellants Nos. 2 and 3 are also parties, the application under sections 446 and 466 of the Companies Act is maintainable, but it is not maintainable at the instance of appellant No. 1 alone. In the circumstances, it is now for the court to consider whether the court would stay the winding-up proceeding or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p proceeding was started, the LIC also terminated the lease of the company. It is not disputed that the West Bengal Premises Tenancy Act, 1956, is not applicable to the instant case, for the lease of the building in question is over 25 years. It is the contention of the appellants that in view of rule 268 of the Companies (Court) Rules, 1959, hereinafter referred to as "the Rules", the disclaimer has not yet been operative. Rule 268 provides as follows : "Every disclaimer shall be filed in court by the liquidator and shall not be operative until it is so filed. Where the disclaimer is in respect of a leasehold interest, it shall be filed in court forthwith. Notice of the filing of the disclaimer shall be given to the persons interested in the property. The disclaimer shall contain particulars of the interest disclaimed and the statement of the persons to whom notice of the disclaimer has been given. The disclaimer shall be in Form No. 133 and a notice of disclaimer in Form No. 134. Where a disclaimer has been filed in court, the liquidator shall file a copy thereof with the Registrar of Companies." The provision for disclaiming the property of a company which is being wound u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he official liquidator to forthwith disclaim the property. The official liquidator complied with the order of the court in disclaiming the property, but did not file the disclaimer in court. Now, the question is whether the disclaimer has become operative. Much reliance has been placed on behalf of the appellants on rule 268 of the Rules. It is submitted that as the disclaimer has not been filed in court, it is not operative. The learned counsel for the appellants submits that rule 268 is mandatory and, therefore, it must be held that as the official liquidator did not file the disclaimer in court, such disclaimer has not yet taken place in respect of the property in question. We are, however, unable to accept this contention. Here, the disclaimer has not taken place at the instance of the official liquidator. Section 535 of the Companies Act and rule 268 of the Rules relate to a disclaimer that may be made in accordance with the leave granted by the court to the official liquidator on his prayer to disclaim any property. It will be for the official liquidator to disclaim it. The official liquidator will not, however, be bound to disclaim the property, for the court only grants lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt directing the official liquidator to disclaim the property in question or, in any event, the disclaimer has taken place from the date the official liquidator served the disclaimer on the LIC. We have been pressed on behalf of the appellants to consider the effect of the two notifications, one under section 3 and the other under section 4 of the Relief Undertakings Act, on the winding-up proceeding, in particular, on the disclaimer. It is not disputed that if the disclaimer had become operative before the said notifications were issued, the Relief Undertakings Act and/or the said notifications will not have any effect on the disclaimer. In view of our finding that the disclaimer has become operative with effect from October 4, 1982, when the appeal court directed the official liquidator to disclaim the property in question, that is td say, long before the two notifications under the Relief Undertakings Act had been made, it is not necessary for us to consider the submissions made on behalf of the appellants with reference to provisions of the Relief Undertakings Act on the assumption that the disclaimer had not been operative. It has been already stated that the appellants are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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