9911796707
TMI Blog1992 (2) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... the satisfaction of the learned company judge of the Bombay High Court, within two months from today. The amount already deposited by the appellant in pursuance of the order under appeal shall continue to lie in court. The said amount and the security furnished by her in pursuance of this order shall be subject to the decision in the appellant's suit, now transferred to the Bombay High Court. - CIVIL APPEAL NOS. 886 AND 887 OF 1992 SLP (CIVIL) NOS. 12199 OF 1986 AND 15678 OF 1990 AND SLP (CIVIL) NO. 16368 OF 1990 - - - Dated:- 25-2-1992 - M.N. VENKATACHALIAH, A.M. AHMADI AND B.P. JEEVAN REDDY, JJ. B.A. Masodkar, B.K. Mehta, G.L Sanghi, A.M. Khanwilkar, Vimal Dave, Mrs. V.D. Khanna, R.F. Nariman, R.N. Karanjawala, Ms. Manik Karanjawala and Sanjay Singh for the Appellant. Nitin Thakkar for the Respondent. JUDGMENT B.P. Jeevan Reddy, J. Leave granted in S.L.P. No. 12199 of 1986. The appeal is directed against the judgment of a Division Bench of the Bombay High Court in Appeal No. 777 of 1986 disposing of the appeal preferred by the appellant with certain directions. Khandesh Spinning and Weaving Mills Pvt. Ltd. went into liquidation at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al preferred against the order of winding up, a Division Bench of the Bombay High Court, by its order dated January 31, 1985, appointed a provisional liquidator. The appeal was dismissed later on September 9, 1985. In November, 1984, the appellant filed a suit, being Suit No. 4873 of 1984, in the Court of Small Causes for a declaration that she is the lawful tenant and/or a protected sub-tenant of the said flat (excluding the portion reserved for the company) and for an injunction restraining the defendant from interfering with her possession and enjoyment. The sole defendant to the suit was Khandesh Spinning and Weaving Mills Pvt. Ltd. having its registered office at Station Road, Jalgaon (Maharashtra State) . The appellant also applied for and obtained a temporary injunction against the defendant-company. Some time in October, 1985, the official liquidator appeared in the suit on behalf of the defendant and raised an objection that, without the leave of the company court, the suit cannot proceed. Evidently to meet this objection, the appellant applied to the company judge (High Court of Bombay) on March 12, 1986, for grant of leave to proceed with the suit under section 446 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant will have to be adjusted (adjudicated ?) upon and that, therefore, leave is to be granted. Accordingly, it granted leave and transferred it, with the consent of both the parties, to the High Court. The Bench took notice of the fact that there are several liabilities outstanding against the company including the claim of workers for salary and provident fund amounts and further that the official liquidator requires a portion of the said flat for storing the books of the company. Having regard to all the said circumstances, grant of leave was made subject to certain conditions which conditions alone constitute the subject-matter of this appeal. They run as follows : Further, the official liquidator is directed to take possession of the said entire premises in which the company's office was originally situated, including the portion of the premises in the occupation of the appellant. The official liquidator, however, will allow the appellant to occupy the area in the said premises which is at present in her possession, save and except room No. 2 as marked in exhibit 'A', as shown in the plan which is put on record by consent of parties ... She will, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official liquidator to take possession of the entire flat including the portion in possession of the appellant, he submitted. Sri Mehta, learned counsel for the official liquidator, supported the reasoning and directions given by the Division Bench. He submitted that the story of sub-tenancy is untrue besides being invalid. The story of consent of landlord to the alleged sub-tenancy agreement is equally untrue. The trustee representing the landlord-trust acted beyond his authority in consenting to the said sub-tenancy, assuming that there was such a consent. Having regard to the close relationship of the appellant with one of the directors of the company (and the manager of the company), and in all the facts and circumstances of the case, the directions made by the Division Bench are perfectly just and that this court ought not to interfere with the same. He submitted that the directions made by the Division Bench are discretionary in nature and have been made without prejudice to the rights and contentions of the parties in the said suit. The Bench has further empowered the company judge to vary the said directions at any time he thinks proper. Having regard to the prevailing r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay Rent Control Act. In addition to this fact-situation, there are two other circumstances which must be taken into consideration, viz., ( a )The tenancy rights the company had in the said flat may not be an asset for the purpose of liquidation proceedings, and ( b )merely because a company goes in liquidation and a liquidator/official liquidator is appointed, the rights of the company vis-a-vis its landlord and/or its tenants do not undergo any change. In view of the above facts and circumstances, we are of the opinion that the directions made by the Division Bench were not really warranted at this stage. The said directions have the effect of dispossessing the appellant from the said premises at an interlocutory stage. The character of her possession has also been altered-she is now permitted to be in occupation of a portion of the flat as the agent of the liquidator. These directions, in our opinion, were not really warranted, at any rate, at this stage of the proceedings, when the rights of the appellant are yet to be adjudicated upon. One important circumstance which was not present before the Division Bench and which has been brought to our notice is the conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the portion in possession of Smt. Nirmala R. Bafna. According to the appellant, the sub-tenancy in favour of Smt. Nirmala R. Bafna was created with their consent. The ground on which vacant possession of the remaining portion was asked for was that the official liquidator or the company does no more require the said portion for their purpose. Reliance was placed upon the decision of this court in Ravindra Ishwardas Sethna v. Official Liquidator [1983] 4 SCC 269 ; [1983] 54 Comp Cas 792 . The official liquidator opposed the application. The learned single judge dismissed the application by his order dated August 9, 1989. The learned judge was of the opinion that the decision in Ravindra Ishwardas Sethna [1983] 4 SCC 269 ; [1983] 54 Comp Cas 702 has no application to the facts herein and that moreover the liquidator requires the said portion (of the flat in his possession) for storing the company's records at Bombay. The appeal court, while affirming the relevance of the reason given by the learned single judge, gave an additional reason in support of their order, viz., that a proposal received from the Rashtriya Girni Kamgar Sangh for revival of the said compan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
