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TMI Blog2003 (1) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... ahim, Mumbai. Premises on the second floor in building No.1 of this property were given to one Amar Dye-Chem Ltd. (Presently in liquidation) on leave and licence basis beginning from 1-9-1960. These are office premises of the size of 4,850 sq. ft. The appellants have filed a suit in the Court of Small Causes at Bombay for recovery of these premises way back in June 1998. During the pendency of that suit, the said Amar Dye-Chem Ltd. was directed to be wound up by an order passed by a company judge of this Court (Lodha J.) on 9-12-1998, in Company Petition No. 895 of 1998. Inasmuch as the appellants suit for eviction was pending in the Court of Small Causes at Bombay, the appellants took out Company Application (Lodging) No. 64 of 1999 to seek leave under section 446 of the Companies Act to continue to prosecute that suit. This application was subsequently numbered as Company Application No. 372 of 2000. 4. That application reached before Rebello J. on 12-2-1999. The learned Judge asked the official liquidator to inform as to whether he required the premises and wanted to continue in possession thereof and if so, how long. A report was made accordingly thereafter on 3-3-1999. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken possession of the entire premises. Respondent No. 1 was therefore directed to pay compensation proportionately for the part of the premises in his possession. The appellants were permitted to take possession of the premises which were stated to be not in the possession of respondent No.1. It is not disputed that the appellants have therefore taken possession of the particular part and it is only a part of the premises which is in the possession of respondent No.1 now with which we are presently concerned. After the expiry of two years under the order passed by Nijjar J. dated 1-1-1999, possession of this remaining part of the premises was not returned to the appellants which was also expected to be returned after two years, Nijjar J. had adjourned the company application to the first week of April, 2001. It reached before Kochar J. on 14-6-2001, when it was submitted on behalf of the official liquidator by filing a reply that the remaining part of the premises could not be handed over since certain movables were lying therein and which were to be auctioned and sold. The learned judge observed that though he appreciated the difficulties expressed by the official liquidator, yet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to handover possession of the said office premises. It is this order which is under challenge in the present appeal. 10. It is material to note that in this appeal, a notice of motion was moved earlier which came up before another Division Bench (A.P. Shah and Mrs. V.K. Tahilramani JJ.)on 18-3-2002, and the motion was made absolute in terms of prayer ( a ). This prayer( a ) stayed the operation of the impugned order and therefore it is submitted that in view thereof, the liquidator was bound to handover possession of the remaining part of the premises to the appellants, yet the same was not done. That apart, in the meanwhile, another difficulty cropped up for the appellants, namely that the suit filed by the appellants in the Court of Small Causes at Bombay was being taken up for hearing and therefore the appellants apprehended that the suit will be dismissed for want of leave under section 446 of the Companies Act. An order was therefore passed on 22-8-2002, and again on 29-8-2002, directing that the Court of Small Causes will not dismiss the suit for want of leave. Although the motion in this appeal was to be heard first, it was agreed amongst counsel appearing for the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view the orders passed by the two predecessor judges, for which he did not have the jurisdiction. Besides, as stated above, the prayer of the liquidator was also not with respect to the premises in any manner whatsoever. It was sought to be contended by Mr. Chinai, learned Counsel appearing for the official liquidator, across the Bar that the submission on the change in the legal position on the Maharashtra Rent Control Act, 1999 having come into force could be canvassed. Mr. Tulzapurkar appearing for the appellants submitted that firstly the submission was not tenable in law. This is because under section 3(1)( b ) of the Maharashtra Rent Control Act, 1999, the premises of companies with paid up capital over Rs. 1 crore were outside the coverage of the Act, and the company in liquidation was one such. Besides, under section 58(2)( a ) of the new Act, pending proceedings were not covered thereunder. Therefore, even after the new Act coming into force, it was not permissible for the official liquidator to seek consideration for surrendering tenancy. But that apart, it was a serious submission as such and if the liquidator wanted to canvass it, surely he would have made the submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) on the resubmitted report of 29-11-2001, were clearly in excess of his jurisdiction and uncalled for. As stated earlier, it was not a review of the order passed by the earlier judges nor was he sitting in appeal and hence it was not open to Karnik J. to have drawn such an inference that his predecessor (Kochar J.) was misled to believe or had formed a misbelief. This being the position, as far as the submission with respect to the return of the premises is concerned, there was no prayer objecting to the return of the premises to the landlord on behalf of the official liquidator and there was no occasion for the learned judge (Karnik J.) to refer to the change in the legal position. The observation of the learned judge (Karnik J.) in the opening sentence of his impugned order that there was something more than what meets the eye ex facie in these reports of the official liquidator was equally uncalled for. 14. We may also mention that according to Mr. Tulzapurkar, at the highest the premises were required for continuing to retain the movables until they were disposed of. He submitted that now the auction sale has been conducted and even for this purpose also, the premises we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng those movables and it is therefore only due to their intervention that the learned judge did not confirm the sale of movables in favour of the appellants. Now when these interveners are asked to maintain their offer, they have declined to do so. In fact, it is these interveners who are responsible for leading the learned judge to pass the order that he has passed. It is also stated that the submission with respect to the change in the rent control law was advanced on their behalf before the learned judge though it is very much disputed by counsel appearing for the appellants. However, even if that be so on both these counts, namely with respect to the movables as well as with respect to the premises, it is these interveners who led the learned judge (Karnik J.) to pass the order which he has passed and it has led to this appeal. This entire exercise has become necessary only because of these two interveners who were former directors of the company in liquidation and we do not find it to be a bona fide exercise. It is because of their intervention that the appellants were required to file this appeal and therefore they will have to bear the costs of this appeal. 16. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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