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TMI Blog2003 (7) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... ant towards arrears of outgoings including interest on delayed payment upto 31st March, 2002. Arrears for 1993-1999 Rs. 59,047 Outgoing charges Rs. 86,875 Arrears for April-Dec., 01 Rs. 8,757 Telephone Charges Rs. 2,910 Rs. 1,57,589 Interest on delayed payments Rs. 28,795 Rs. 1,86,384 ( c )that the Respondent No. 2 be directed to pay to the Applicant Rs. 6,533 per month subject to increase by way of damages/mesne profit for wrongful withholding possession of the said Unit No. 60 from the date of the Order till the date of handing over of the vacant possession thereof to the Applicant. ( d )that the Official Liquidator be directed to pay to the Applicant-MVIRDC Rs. 6,533 per month subject to increase by way of compensation till the Official Liquidator handover vacant possession of the said premises to the Applicant. ( e )Pending the hearing and final disposal of this Application the Respondent No. 2 be directed to pay to the Applicant outgoings at the rate of Rs. 11.75 per sq. ft. per month on the basis of common outgoings calculated for the year 1999-2000 subject to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Official Liquidator attached to this Court. The Official Liquidator has allowed the demised premises to be used by the respondent No. 2 - Dinesh Rubber Industries. It is also stated that Dinesh Rubber Industries has failed to pay the rent and outgoing charges to the Centre. The Centre is, therefore, entitled to enter the demised premises and to takeover the possession thereof. 3. The Official Liquidator has made the counter affidavit. It is stated that pursuant to the order of winding up of the Company made on 14th October, 1993 the Official Liquidator had gone to recover the possession of the demised premises. However, he found that prior to the date of winding up i.e., in April, 1993 the Company had inducted that M/s. Dinesh Polyber Limited (hereinafter referred to as Dinesh Polyber ) and Hi-Rel Powernetics Private Limited (hereinafter referred to as "Hi-Rel") in the demised premises on each floor thereof i.e., on 1st floor and the mezzanine floor (first floor/second floor) for a monthly rent of Rs. 10,000 and Rs. 5,000 respectively. The Official Liquidator had, therefore, sought direction of the Company Court for allowing Dinesh Polyber and Hi-Rel to continue to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mons insofar as the Centre has claimed possession of the demised premises. However, he supports that Dinesh Polyber and Hi-Rel should be ordered to handover possession of the demised premises to the Official Liquidator. He has submitted that the Centre had agreed to lease the demised premises to the Company for a period of 60 years. The said period of 60 years shall expire in the year 2037. The leasehold right of the company is a valuable asset of the company, which is required to be disposed of in accordance with the Companies Act, 1956 (hereinafter referred to as "the Act"). He relies upon the judgments of this Court in the matter of Legal Heirs of Deceased Fakir Chand Ambaram Patel v. OL of Amruta Mills 2002 (3) GLH 367, Kanubhai H. Prajapati v. Official Liquidator 1999 (1) GLR 429, Kailash Financiers (Cal.) P. Ltd. [1982] Comp. LJ 100 and Vaz Forwarding Ltd. v. State Bank of India [1996] 85 Comp. Cas. 603 (Bom.). 6. The learned advocate Mrs. Soparkar has appeared for Dinesh Polyber. She has admitted that Dinesh Polyber has failed to pay rent regularly. But she has denied that no rent has been paid to the Official Liquidator after August, 1997. She has submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement with respect to the office premises. The landlords of the said office premises took out the Judge s Summons and prayed for a direction to the Liquidator to terminate the caretaker s agreement and to handover the vacant and peaceful possession of the premises to the landlords. In the appeal arising from the said claim, the Hon ble Supreme Court held that section 457 of the Act enables the liquidator, with the sanction of the Court, amongst others, to carry on the business of the company so far as may be necessary for the beneficial winding up of the company. The Court observed that the said power to carry on the business of the company can be utilised only for the beneficial winding up of the company and not for making profit from it. The Hon ble Court further observed that giving away the premises under caretaker s agreement was not the business of the company. Further, the premises was not required by the Official Liquidator for the purpose of winding up of the company. The Hon ble Court, therefore, directed that the possession of the said office premises be handed over to the appellant-landlord. 9. In the matter of Anil (P.) Ltd. ( supra ) this Court following th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds can be appropriated for discharge of the debts of the Company. Mr. Kavina has also relied upon the said judgment and has submitted that while setting out the above referred principles the learned Judge has made an exception with respect to the lessees who commit breach of the terms and conditions of the lease and where under the agreement the landlord has a right to forfeiture. He has relied upon the words, "in none of the cases, was it contended or pointed out that if there is any breach of express condition which entitle the landlord to invoke forfeiture. Even if nonpayment of rent for a particular period could be treated as a breach of one of the conditions the terms of the lease deeds do not envisage forfeiture", appearing in paragraph No. 37 of the judgment. Mr. Kavina has strenuously urged that in the present case indisputably the Company has committed breach of the terms and conditions of the agreement and the Centre has a right to forfeiture. 12. In the matter of Kanubhai H. Prajapati ( supra ) this Court summarised the principles as under : "1.The rights and obligations arising under Rent laws as landlord and tenant subsist between the owner and the company in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the leasehold right. The Official Liquidator acts under the supervision and control of the Company Court. Hence, the Official Liquidator holds the leasehold rights. The leased premises can be used by the Official Liquidator for the beneficial winding up of the company. The leasehold rights can be sold or assigned also but, in consonance with the lease agreement. 16. In the present case the first question that arises is in respect of the nature of the leasehold right that the Company had in the demised premises. It is vehemently argued that the demised premises was given on lease for a period of 60 years. Unutilised period is a valuable asset of the company, which can be sold or assigned. I am afraid, I am unable to agree with this contention. Section 107 of the Transfer of Property Act, 1882 provides, inter alia , that lease of an immovable property for any term exceeding one year can be made only by a registered instrument. Such instrument shall be executed by both the lessor and lessee. In the present case, admittedly, no registered lease deed has been executed. The demised premises had been given away under the agreement to lease. In similar circumstances a Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to handover the possession thereof to the Official Liquidator. In above view of the matter, Dinesh Polyber and Hi-Rel are directed to handover the vacant and peaceful possession of the demised premises to the Official Liquidator forthwith. Dinesh Polyber and Hi-Rel are also directed to pay the amount of outstanding rent to the Official Liquidator, as agreed under the above referred agreements dated 27th June, 1994 till the date they handover the vacant possession of the demised premises. In case of failure of Dinesh Polyber and Hi-Rel to pay the outstanding amount of rent, the Official Liquidator shall be entitled to take approp-riate steps for recovery of such amount. The Official Liquidator shall, on receiving the possession of the demised premises from Dinesh Polyber and Hi-Rel handover the vacant and peaceful possession of the demised premises to the Centre. The Official Liquidator shall remove all the furniture and other articles, which may be lying in the demised premises. The Centre shall be entitled to recover the outstanding amount of outgoing charges due and payable by Dinesh Polyber and Hi-Rel. On recovery of the outstanding amount of rent from Dinesh Polyber ..... X X X X Extracts X X X X X X X X Extracts X X X X
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