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TMI Blog1987 (9) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... rest to Kalla Properties and Industrial Corporation Ltd., defendant No. 6 in the said Suit No. 961 of 1959. On or about August 24, 1950, the said Kalla Properties and Industrial Corporation Ltd. purported to mortgage the said leasehold interest in the said premises to Jaganatha Roy and Baluram Ray, defendants Nos. 7 and 8 in the said Suit No. 961 of 1959. By an indenture dated May 11, 1953, the said Kalla Properties and Industrial Corporation Ltd. purported to grant a sub-lease of the said premises to one Dhonraj Purohit who was defendant No. 3 in the said Suit No. 961 of 1959. Sometime in 1954, the said Dhonraj Purohit purported to assign the said sublease of the said premises in favour of one Asharam Swami, defendant No. 10 in the said Suit No. 961 of 1959. Thereafter, the said Asharam Swami purported to grant a sub-lease to Bholalal, defendant No. 11 in the said Suit No. 961 of 1959. The said Bholalal and his son purported to assign the sub-lease in favour of Latiyal Agricultural and Industrial P. Ltd., defendant No. 12 in the said Suit No. 961 of 1959. Latiyal Agricultural and Industrial P. Ltd. is a company which has gone into liquidation and in respect of which this applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased and defendants Nos. 4 and 5 in respect of premises No. 143/1/1, Cotton Street, demarcated northern portion stood cancelled with effect from June, 1965. It is declared that defendants Nos. 3, 3A, 3B, 4, 5, 6, 9, 10, 11, 12 and 13 have no right, title or interest in the said premises. Sri Kamalesh Banerjee, receiver appointed herein, shall forthwith make over possession of the said premises to plaintiff No. 2 upon making over possession, and upon payment of the amounts mentioned in clauses 4 and 5 hereunder, the receiver shall stand discharged, the receiver shall file his final account within six months." The plaintiff started execution proceedings for eviction under the decree in Suit No. 961 of 1959. In respect of another proceeding, there was an appeal being No. 26 of 1976 where setting aside the lower court's order in execution, the appeal court held that the decree was not a decree for delivery of possession which could be executed. Following the same in the appeal preferred by the appellant herein in such execution case, the appeal was allowed and the order passed in execution was set aside and the execution application was dismissed. However, it was made clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r tried on evidence. The onus of proof of the issues as framed was on the appellant, but he failed to appear on the trial on more than one occasion as has been recorded in an order passed earlier on the said application on September 20, 1985, where it was held that on all questions of fact, the matter was concluded in favour of the applicants and the issues were, therefore, answered all in favour of the applicants and against respondent No. 2. At that stage, the learned advocate for respondent No. 2 submitted that he will address the court on the maintainability of this application on a point of law. In spite of opportunities given, no submission was made on the question of maintainability of the said application. The learned advocate failed to appear at the time of hearing. On behalf of the applicant, reliance was placed on the Division Bench judgment of this court in lndramoni v. Shriram Jute Mills (P.) Ltd. (Appeal No. 154 of 1976, dated December 6, 1976). The learned judge held that the facts of this case were similar to the facts of lndramoni's case (Appeal No. 154 of 1976 dated December 6, 1976) and in view of the said judgment, held that the application has succeeded both o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidator of Sri Latiyal Agricultural and Industrial (P.) Ltd. after its winding-up order passed by this Hon'ble High Court on April 21, 1966, in C. P. No. 162 of 1965, took possession of the demarcated southern portion of the premises No. 143/1/1, Cotton Street, Calcutta, only and used to collect rents from the tenants occupying the said premises. The official liquidator never took possession of the demarcated northern portion of the premises No. 143/1/1, Cotton Street, Calcutta, and also never collected rent from any tenant occupying the premises. As such, I deny and dispute the statements contained in these paragraphs made by the applicant. The applicant may be put to strict proof thereof (para 4). With reference to the statement contained in paras 17 to 24 of the affidavit, I say that the order of the Hon'ble Court passed on September 18, 1979, in Suit No. 1772 of 1964 relates in respect of the demarcated southern portion of the premises No. 143/1/1, Cotton Street, Calcutta, as the said southern portion was taken possession of by the official liquidator after Sree Latiyal Agricultural and Industrial (P.) Ltd. was ordered to be wound up by the Hon'ble High Court on April 21, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was a party to the said suit and with the leave of the court agreed to such compromise decree being passed. This decree was in 1971 and in 1966 the winding up order was passed. He will be deemed to be in possession. It has also been submitted that this application was maintainable in view of the provisions of section 446(2) of the said Act which is set out hereinbelow : "446(2). The court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a)any suit or proceeding by or against the company ; (b)any claim made by or against the company (including claims by or against any of its branches in India) ; (c)any application made under section 391 by or in respect of the company ; (d)any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of the company ; whether such suit or proceeding has been instituted or is instituted, or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not in respect of the said premises seems to be immaterial in the facts of this case. Even if he was such a tenant, the question is whether such interest of Makhan Lal Sharma has devolved on the appellant. This being disputed, a trial on evidence was directed but such opportunity was not availed of by the appellant. Accordingly, we must hold that he was not the heir and representative of Makhan Lal Sharma. Even if Makhan Lal Sharma be treated as a tenant, it has not been proved that the right, title and interest of Makhan Lal, if any, in respect of the said room in the said premises has devolved upon respondent No. 2. Accordingly, he is merely a trespasser. The next question is whether this application made before the company court was maintainable or not. Before we deal with the same, we shall refer to the Division Bench judgment of this court in the case of Indramoni v. Shriram Jute Mills P. Ltd. (Appeal No. 154 of 1976 dated December 6, 1976). In that case, the Clive Mills Co. Ltd. went into liquidation and the official liquidator was appointed as the liquidator of the said company in liquidation. Pursuant to the order of the learned company judge, the official liquidator wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable properties to the purchaser. The order specifically directed the police authorities referred to therein to render police help in evicting the trespassers. A list of tenants and licensees was prepared. The others in occupation were the trespassers. The liquidator prepared a list showing whether the tenants are licensees or trespassers. This was challenged by the appellants on the ground that the liquidator did not give them any opportunity. On that basis, they were given further liberty to file supplementary affidavits which they did. Now the question was whether these appellants were trespassers or not within the meaning of the order passed on August 8, 1972. In our opinion, it was certainly a claim or question coming within clause (b) and certainly within clause (d) of sub-section (2) of section 446 of the said Act. Accordingly, in our opinion, the learned judge was entitled to entertain this application owing to such a question in such a proceeding. Accordingly, we reject this contention of Dutta." The interpretation of the said section has been given by the said Division Bench judgment. Applying the principles laid down therein, we are of the opinion that this application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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