9911796707
TMI Blog1999 (2) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the said premises. It is the case of the applicant that the company-in-liquidation had its registered office at the said premises and was in occupation, possession and enjoyment exclusively till 6-2-1998. On this day this Court passed an order for winding up of the company and appointed the Official Liquidator as liquidator of the company. The official liquidator took possession of the said premises on 6-2-1998. It is set out that the compensation for the use of the premises from 1971 till January, 1998 was being paid by the company-in-liquidation. In the middle of 1997, the compensation in respect of the premises was sent by respondent No. 2 to the applicant. As respondent No. 2 had no connection with the said premises, the applicant was shocked and surprised to receive the compensation. The applicant by letter of 26-8-1997, addressed to the respondent No. 1 sought clarification. By a letter of the same date, explanation was also sought from the respondent No. 2. Neither the respondent No. 1 nor respondent No. 2 offered any explanation. The applicant refused the cheque sent by the respondent No. 2 and the same was communicated by letter dated 22-9-1997. Thereafter, the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No. 2 came into possession of the premises under agreement dated 30-3-1971 and both the respondents were occupying the said premises as a registered office and at the time the Official Liquidator took possession it was the respondent No. 2 who was in possession. There are several other averments. The respondent No. 2 specifically denied that they were in collusion with the directors of the respondent No. 1 when the application was moved to this Court for possession of the premises. It is again reiterated that the respondent No. 2 were in possession of the premises right from the inception of the lease. It is contended that the respondent No. 2 is a tenant in respect of the premises and a suit for declaration has been filed in the Small Causes Court. It is denied that the respondent No. 2 has committed any contempt of this Court or perjury. It is finally contended that the application ought to be rejected. 4. A rejoinder has been filed to the said reply by the applicant to which various documents have been annexed. In paragraph three of the affi-davit filed to the Judge s Summons No. 82 of 1998, moved by the respondent No. 2, it is averred that the board of directors of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring 3,760 sq. ft. or thereabouts of the said building to the respondent No. 1 for a period of 30 years. Under clause three of the said agreement, the respondent No. 1 was permitted to sub- let or under-let the premises. In 1967, the respondent No. 1 sub-let a separate demarcated portion to respondent No. 2 admeasuring 1,200 sq. ft. for a monthly rent of Rs. 800 and put respondent No. 2 in exclusive possession. It is then averred that in 1990, respondent No. 1 further sub-let the premises admeasuring 2,560 sq. ft. to respondent No. 2 at an increased monthly rent of Rs. 3,000. The premises are described in the sketch at exhibit A to the plaint. The premises do not include the suit premises. It is then pleaded in paragraph four that respondent No. 1 was entitled to the use of further premises admeasuring 2,950 sq. ft. on the north wing of the first floor as tenant. In 1993, respondent No. 2 requested respondent No. 1 to sub-let the portion of said premises of the north wing. Respondent No. 1 demarcated the portion admeasuring 2,400 sq. ft. and gave exclusive possession to respondent No. 2 at the further monthly rent of Rs. 12,000. This is described as being marked in orange in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due and payable by the respondent No. 1 and in fact they were in communication with respondent No. 1 who have thereafter forwarded the compensation. Will this mere act on the part of the applicant forwarding compensation/rent for some period be construed as the applicant being in possession and entitled to retain possession. It is now settled law that after the company is wound up insofar as the tenanted premises are concerned unless the Official Liquidator requires them, possession has to be returned to the owner/tenant. In the instant case to the tenant i.e., the applicant herein. It is only in the event that the company had created a sub-lease recognised in law that such sub-lessee would be entitled to protection even though the company is wound up. My attention has been invited firstly to the judgment of the Apex Court in the case of Nirmala R. Bafna (Smt.) v. Khandesh Spg. Wvg. Mills Co. Ltd. [1992] 74 Comp. Cas. 1. In that case under the provisions of the Bombay Rent Act in the case of a company which was wound up, the Apex Court has held that if a sub-tenancy had been validly created with the consent of the landlord, the mere fact that the company was wound up wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion of respondent No. 2, if and at all, is neither settled nor prima facie based on any legal right. The averments in the pleadings are inconsistent and contrary to each other. In the suit filed in the year 1997 against respondent No. 1 and the owner, respondent No. 2 pleaded a case contrary to the case set out in the suit filed against the applicant herein. The respondent No. 2 did not disclose to this Court the fact that he had filed a suit wherein the averments were contrary to the affidavit filed in support of the Judge s summons in Company Application No. 82 of 1998. From the documents on record, it is now clear that respondent No. 2 was aware that the applicant was the tenant, yet chose not to join him as a party in the Judge s summons taken out for obtaining possession. The respondent No. 2 cannot be allowed to enjoy the fruits of such an order having obtained the same by suppressing material facts from the court and in fact deliberately misleading the court on various aspects. In these circumstances, the appropriate order can only be to recall the order dated 20-2-1998. As there are proceedings pending, a suitable order can be passed to allow respondent No. 2 to continu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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