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TMI Blog2002 (10) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in the Schedule annexed to the application and marked as Annexure- A . Consequential orders directing the Official Liquidator to remove all movable assets, furniture and fixtures on the leased land and for delivery of possession to the applicant have also been prayed for. 2. According to the applicant, land measuring about 40460.450 sq. meters situated within the Haldia Dock Complex (West Bengal) was leased out for a period of 30 years w.e.f. 22-12-1982 by a Lease Deed dated 2-5-1983 executed by and between the applicant on one part and the Company in liquidation on the other part. The salient features of the aforesaid Lease Deed which would have a relevant bearing to the present case may be conveniently set out hereunder : "( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any time, be in arrear and unpaid for 21 days if the same shall have become due or if the lessee shall make any breach or fail or neglect to perform or observe any covenants or if the lessee being a company shall go into liquidation or be wound up whether compulsorily or voluntarily it shall be lawful for the Trustees without notice and any time may re-enter the demised land and to re-possesses the same as if the lessee had not been made but without prejudice to any right action or remedies of the Trustees for the same. ( f )The lessee may at any time prior to the expiration of the term of 30 years or provisions for determination thereof remove at their own cost all factories or buildings or structures etc., if any, set up by the lessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Company from the land in question under the provisions of the Act. Notice under section 4 of the said Act, was issued by the Estate Officer to the Company. According to the applicant, while affixing the said notice issued by the Estate Officer in the Company s office at Haldia, the applicant could come to know that the Company had been wounded up by order dated 1-9-2000 passed by this Court and that the Official Liquidator had been appointed as a Liquidator of the Company for the purposes of winding up. Coming to know of the aforesaid development, the applicant issued notice dated 9-8-2001 through its Legal Advisers informing the Official Liquidator of the applicant s claim to title over the leased land and total outstanding dues, amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mary tussle that had developed between the parties need to be answered. The maintainability of the present application has been questioned by the Secured Creditor i.e., ICICI on the ground that under the provisions of section 535 of the Companies Act, the only person competent to file an application for disclaimer is the Official Liquidator. In support thereof reliance has been placed on the Judgment of the Apex Court in the case of United Bank of India v. Official Liquidator [1994] 1 SCC 575. The objection must be overruled, it is contended on behalf of the applicant as section 535 of the Companies Act is not exhaustive of the powers of the Court to order disclaimer. Mr. Roy Choudhury, learned counsel for the applicant, by relying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itz Continental Hotels Ltd. (supra) has proceeded. The judgment cited by the learned counsel appearing for the ICICI in the case of United Bank of India (supra) would hardly be applicable to the present case, as in that case, the Apex Court held that in view of long period of lease remaining and the low rent payable, the property could not be said to have become onerous and burdensome. 8. The essence of the very elaborate arguments advanced by the learned counsel on behalf of the applicant in support of the present prayer for disclaimer is that default in the matter of payment of rent having occurred and the Company having been ordered to be wound up, the right to re-enter the leased property, in terms of the Lease Deed has accrued i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Lease Deed vesting in the lessor as right to re-enter, in the event of the Company being wound up. However, unlike the Civil court wherein a decree has to follow upon a right being established, the Company Court in the exercise of its jurisdiction to direct a disclaimer, is duty bound to take into account several additional factors, all of which would be primarily connected with the interest of the Company in liquidation and those of the Secured Creditors. A disclaimer ought to be ordered by the Court only if it is essentially in the interest of the Company being wound up. If retention of such property is required to effectively carry out the winding up proceeding, no disclaimer would be ordered. 10. Adverting to the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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