9911796707
TMI Blog2000 (9) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was that in 1976 the petitioner let out a flat being Flat No. 19F in premises No. 46C, Jawaharlal Nehru Road, Calcutta-700 071 to the company at a rental of Rs. 1,400 per month payable according to the English calendar month from March, 1987. 3. According to the appellant, the entire amount of surcharge on account of consolidated rates and taxes under section 230( b ) of the Calcutta Municipal Act, 1980, was recoverable from the company as the said premises were used for commercial and for non-residential purpose. In the said company petition, it was further alleged that the company after payment of surcharge of consolidated rate of municipal taxes started deducting the same from the rent payable by the company to the appellant. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no valid bona fide or substantial defence was raised by the company and the company was indebted for the same as aforesaid to the appellant at the rate as above. The company had taken a further defence that in the event of non-payment of rent, the specific provisions of the West Bengal Premises Tenancy Act would be applicable in respect of the disputes between the parties. According to the company, the monthly rent of Rs. 1,400 was inclusive of the share of rates and taxes and surcharge and statutory deduction and, therefore, the company was not liable to pay municipal rates and taxes and statutory dues. Further, according to the company, in December, 1986, the company received a consolidated bill for Rs. 46,002 from the administrator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the parties. It was further held by the learned judge that a question had arisen as to whether there was any agreement between the parties as to the payment of surcharge or other taxes by the petitioner-landlord. According to the learned judge, this question also was not available to be gone into by the company court. Therefore, the learned judge on the above findings rejected the application for winding up of the company. Feeling aggrieved by the said order, this appeal has been preferred which was heard in the presence of learned counsel for both the parties. 7. The only question that was argued by the learned senior counsel for the appellant, Mr. Promotha Nath Chatterjee was whether there was any bona fide dispute on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed in the civil court for ejectment could not be a ground for rejection of the petition. According to Mr. Chatterjee, although no such statutory notice was served on the company, the petitioning creditor may still prove that the company was otherwise unable to pay its dues that is to say the creditor must show that the company was unable to pay its dues. Therefore, according to Mr. Chatterjee, this being the position in this case and since the claim of the petitioner was not disputed and as it is an admitted fact that the company had defaulted in payment of arrears of rent of the municipal taxes, the petition for winding up cannot be said to be an abuse of the process of the court. Therefore, according to Mr. Chatterjee, the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Bengal Premises Tenancy Act, 1956. Therefore, in view of the special statute enacted to settle the dispute between the landlord and tenant regarding the rent payable by one to the other cannot be made under the Companies Act. Therefore, until and unless the dispute as to the rent payable is settled by the appropriate forum under the special enactment, the same cannot be treated as an admitted claim for the petitioning creditor in a company petition. Therefore, in this case, a valid defence subsists and accordingly, the judgment of the learned judge as referred to above cannot be applied to the facts of this case. 10. Mr. Chatterjee also relied on a decision in the case of King s Cross Industrial Dwellings Co., In re [1870-71] XI Law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable either by the lessor or by the lessee. The only question that can be decided in a petition for winding up as observed earlier, is whether there is any bona fide dispute as to the claim of the petitioning creditor or not. Even assuming that the payment of commercial surcharge is a primary responsibility of the tenant being the company/respondent herein, even then the question whether the company has already paid or whether there is any question of any adjustment or whether any sum is due or payable by the appellant to the company would be adjudged by the provisions of the special enactment, viz., the West Bengal Premises Tenancy Act, 1956, which has an overriding effect over and above the provisions of the Companies Act. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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