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TMI Blog2003 (9) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants through their advocate by a letter dated January 31, 2003 served a notice upon the Official Liquidator requesting him to disclaim the said flat. In reply Official Liquidator by his letter dated February 26, 2003 informed the applicants advocate that in terms of the order of Court dated November 26, 2001 the Official Liquidator has been discharged from any liability in respect of taking any possession of the assets of the company (in liquidation) hence question of disclaimer of the said property by the Official Liquidator does not arise. 4. It is the case of the applicants that they came to know on or about November 28, 2002 that the company has gone in liquidation and upon further enquiries made by their learned advocate it was learnt that the company went into liquidation by an order dated November 28, 2002. It is further stated that at a later stage the learned advocate of the applicants came to know that by an order dated December 6, 1999 and November 26, 2001 the company went into liquidation and thus it is contended that the delay in filing the application needs to be condoned for the said reasons. 5. The substantive prayer is founded on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The provision for disclaiming the property of a company which is being wound up is to be found in section 535 of the Companies Act. Under this provision, only onerous property of the company in liquidation can be disclaimed by the Official Liquidator of the company with the leave of Court. Leave has to be taken by the Official Liquidator before he can disclaim the property of the company. Section 535(2), inter alia , provides that the disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest and liabilities of the company and the property of the company in or in respect of the property disclaimed. Instant application is filed by the landlord against the Official Liquidator. Disclaimer is thus prayer for not at the instance of the Official Liquidator under the leave of Court but for a direction upon the Official Liquidator to disclaim the property. 12. The question for consideration is whether such an order can be passed as prayed for. This question needs consideration in the context of the order of Hon ble the Company Judge dated November 26, 2001 whereby it was directed that "the Official Liquidator shall stand discharged from any liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow him to reside in the flat and that a fresh lease would be executed in his favour after the lease in favour of the company (in liquidation) expires on December 31, 2005. In support thereof, reliance was placed upon certain pay orders evidencing payment of rents. 17. In the affidavit-in-reply apart from denying the above allegations, the payments made by Mr. Pasari by Pay Order as also the debit vouchers, xerox copies thereof, have been filed as annexure A and the submissions made by the applicants herein is that the vouchers were raised in the name of the company now in liquidation. It is contended by Mr. P.C. Sen, learned senior counsel that such act of the intervener is a fraud, as he could not have represented the company after it had gone into liquidation. True as contended by Mr. P.C. Sen, learned senior counsel once an order of winding up is passed, the company in liquidation can be represented only by the Official Liquidator. I am inclined to agree with Mr. P.C. Sen, learned senior counsel that the petitioners were thereby kept in dark as to the passing of winding up order as rents were tendered on vouchers prepared on behalf of the company without disclosing that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Pasari) is entitled to retain possession. Mr. Talukdar, learned advocate, submitted that only symbolic possession can be taken and not actual possession from his client. 22. Now as regards the objections taken on behalf of the ICICI Bank in their affidavit affirmed by their Assistant General Manager it is stated that ICICI and UTI along with Life Insurance Corporation of India have initiated proceedings against the respondent company before the learned Debt Recovery Tribunal for recovery of their debts and a Receiver has been appointed by the learned Tribunal. 23. Similar is the case stated on behalf of the Allahabad Bank in the affidavit affirmed by the Manager (Law) of Allahabad Bank. It is the case of Allahabad Bank that recovery proceedings have been initiated pursuant to a certificate for realisation of over Rs. 6 crores from the respondent company and the properties and assets mortgaged and hypothecated with the bank are to remain charged all realisation of the debt. Reference has been made to the orders passed by the Recovery Officer more particularly to the order dated January 5, 2000 being annexure B whereby a Receiver was appointed. 24. It was thereupon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As regards the objection taken by the various parties to this prceedings including the Official Liquidator that as the Official Liquidator has been discharged, question of disclaimer by him or direction upon Official Liquidator to disclaim does not arise. Suffice it to state here that once an order of winding up has been made in terms of section 449 of the Companies Act, the Official Liquidator shall, by virtue of his office, become the liquidator of the company. 30. In terms of section 451 of the Act, the Liquidator shall conduct the proceedings in winding up the company and perform such duties in reference thereto as the Court may impose. The powers of Liquidator have been enumerated in section 457 of the Act. 31. As noticed supra , power to disclaim is conferred upon the Liquidator under section 535 of the Act. Such power is notwithstanding that the Liquidator of the company has endeavoured to sell or has taken over possession of the property. In other words, the discretion to disclaim is notwithstanding the fact that the liquidator has not taken possession of the property. Once the property is an asset, in the case on hand, leasehold asset, it is not necessary that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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