9911796707
TMI Blog2005 (2) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by one Mr. Ravikant Mohanlal Solanki, one of the office bearers of the applicant Union in support of the present Judges Summons. It is stated in the affidavit that by an order dated 7-9-1993, the Company, namely, Vijay Mills Limited was ordered to be wound up by this Court. The Official Liquidator attached to this Court was appointed as the Liquidator of the Company. It is further stated that the unit was closed down on 22-1-1988 and thereafter in the winding up petition filed by one of the petitioning creditors being Company Petition No. 79 of 1989, the order of winding up was passed on 7-9-1993. It is further alleged that the respondent No. 3, namely, M/s. Amin Traders has encroached upon some portion of the land of the Mills Company since 1993 and the Official Liquidator, under the mistaken belief has put the said party into possession of the premises in question. The Ex-Directors of the Mills Company who have filed statement of affairs have not indicated the name of the respondent No. 3 anywhere and there was no documentary evidence showing that the respondent No. 3 came into possession of the Mills Company even prior to the winding up order passed by this Court. 3. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent No. 3 has been carrying on the business of reeling the yarn in the name and style of M/s. Amin Traders and respondent No. 3 was in lawful possession of the premises in question which includes Godown and factory on the land admeasuring about an area of 2,500 Sq. Mtrs. for the last more than 20 years. The respondent No. 3 has been regularly paying rent. In the order dated 31-1-1996 passed by this Court in Company Application No. 205 of 1994 filed by one of the secured creditors of the Company in liquidation, Central Bank of India, it was clearly observed that the present occupant had been in the possession of the property for the last more than 10 years and he has been paying the rent for the premises since December, 1987. It is further submitted that the O.L. has prepared the minutes on 3-2-1994 while taking possession of the Mills Company after order of winding up was passed by this Court and in the said minute, it was recorded that the respondent No. 3 was in possession of the premises in question for the last more than 10 years. 8. With regard to the allegation of encroachment made by the applicant in this application, it is stated that after taking the possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Company and he was granted reconnection on 17-11-1994. No permission of the winding up Court was obtained for providing this connection. 12. An affidavit-in-rejoinder was filed by the applicant on 25-9-2003 in response to the affidavit-in-reply of the respondent No. 3. It was stated that the respondent No. 3 was merely a Contractor of the erstwhile management of the Vijay Mills Limited and he was never a tenant. The respondent No. 3 was entrusted the work of empty bobbins. The A.E.C. disconnected the power supply on 21-1-1988 and the Labour Court had applied its seal to all the machineries including the machineries which were alleged to have been owned by the respondent No. 3. Till 7-9-2003 all these machines were closed and order of winding up was passed on 7-9-2003. No rent note or receipt was produced showing that the respondent No. 3 was the tenant. Even no electricity bill was produced prior to 17-1-1988. 13. The O.L. has filed his further report on 7-10-2003 wherein it is submitted that the receipt dated 5-8-2003 issued by the Official Liquidator was without prejudice as it has been specifically stated on the right hand top of the receipt and since the office o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Mills Company was used as the residence of the employees of the Mills Company and the respondent No. 3 was never an employee of the Mills Company. The respondent No. 3, therefore, cannot be permitted to continue to occupy on the basis of the said receipt which is false and concocted. 16. The O.L. has further filed his report on 12-7-2004 wherein it is stated that the applicant has paid rent to the office of the Official Liquidator and the rent receipt No. 1529 dated 12-1-1988 produced by the applicant was signed by one Mr. A.M. Brahmbhatt on behalf of the Mills Company (In Liquidation). The O.L. has further stated that the Mills Company was closed somewhere in the month of January, 1988 and the receipt was also produced by the applicant for the said period. The O.L. has, therefore, submitted that the respondent No. 3 may be directed to produce the original rent agreement and rent notes for the period prior to January, 1988. The respondent No. 3 has vide its affidavit filed in September, 2003 submitted that he has been paying rent from December, 1987 i.e. just in the previous month before the closure of the Mills Company in January, 1988. This fact itself creates some d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ator has accepted all subsequent payment made by the respondent No. 3 and hence, it is not open for the O.L. to raise an issue that the respondent No. 3 is not the tenant of the premises of the Mills Company in question. 18. The O.L. has filed his further report on 9-8-2004 wherein it is stated that the respondent No. 3 was occupying the portion in the capacity of Reeling Contractor and the said Contract came to an end on the closure of the Mills and it needs to be examined as to how the respondent No. 3 is shown as the tenant of the Krishna Chawl which Chawl is meant for employees of the Company and also location is away from the Mills Company. The allegation as to whether the respondent No. 3 has occupied certain portions of the Mill also needs to be examined. 19. In the further report dated 16-8-2004, the O.L. has submitted that there is no justification in saying that the office of the O.L. has supported the respondent No. 3 in creating the tenancy in its favour. 20. In his further report filed by the O.L. on 2-9-2004, a request was made to this Court to direct the respondent No. 3 to provide a copy of the agreement executed by the Mills premises for working as a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted, the matter was taken up for final hearing. 26. Heard Mr. D.S. Vasavada, learned advocate appearing for the applicant and Mrs. Swati Soparkar, learned advocate with Mr. S.N. Soparkar, learned senior advocate for respondent No. 3 and Mr. K.B. Pujara, learned advocate for respondent No. 4. 27. Mr. D.S. Vasavada, learned advocate appearing for the applicant has submitted that the respondent No. 3 was and is never the tenant of the Mills Company and was merely a Reeling Contractor. As soon as the Company is closed and winding up order is passed by this Court, the Contract has come to an end. The respondent No. 3 has, thereafter, no right to retain the possession of the disputed premises. He has further submitted that rent receipt dated 12-1-1988 produced by the respondent No. 3 is the false and fabricated document and it is purposefully created so as to create tenancy right. He has further submitted that the Mills Company was closed down on 22-1-1988 and the alleged rent receipt was got issued in connivance of an employee of the Mills Company on 12-1-1988 showing the receipt of rent for the period from 1-1-1987 to 31-12-1987. He has further submitted that the said receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant has no right or locus whatsoever to file this application before this Court seeking eviction of the respondent No. 3 from the disputed premises. The O.L. is in charge of the affairs of the Company-in-liquidation and he takes care of the properties of the Company. He has further submitted that it is not open for the applicant to raise the dispute about rent receipt dated 12-1-1988 after so many years. Based on the said report and considering the actual possession of the respondent No. 3 at the time when the winding up order was passed and possession of all the assets of the Mills Company was taken over by the O.L., all subsequent rent receipts are issued by the Official Liquidator and the respondent No. 3 is in actual possession of the disputed premises. 31. Mr. Soparkar has further submitted that the present application is not maintainable even on the ground that similar application was earlier moved by the secured creditor, namely, Central Bank of India being Company Application No. 205 of 1994 and while disposing of the said application on 31-1-1996, this Court has rejected the prayer of evicting the respondent No. 3 from the disputed premises. He invited the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have got direct interest in the realization of the assets and in the distribution of sale proceeds of such assets. It is, therefore, not correct to state that the applicant has no locus or no right to move this application before this Court. As far as earlier order passed by this Court in Company Application No. 205 of 1994 is concerned, first of all, the applicant was not a party in the said application and hence principle of res judicata is not applicable to the present proceedings. Neither the applicant in that application being the Secured Creditor nor the Official Liquidator has placed the correct facts before the Court. The record, on the contrary, reveals that the then Official Liquidator has misled this Court. Except the Rent Receipt dated 12-1-1988, there was no other evidence showing that the respondent No. 3 was the tenant for the last many years and that the rent was regularly being paid by him till December, 1987. Even in the present proceedings, the respondent No. 3 could not produce any rent agreement or rent receipt prior to 1987. The rent receipt dated 12-1-1988, on the face of it, seems to be false and fabricated. First of all, it is issued on the letter hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the Official Liquidator do not assume such significance as the respondent No. 3 had not paid any rent for the period from 1988 to 1994. His name was not there as a tenant in the statement of affairs filed by the Ex-Directors of the Mills Company. The Official Liquidator has wrongly issued the notice for recovery of arrears of rent and current rent and thereby allowed the respondent No. 3 to create evidence in his favour. The fact, however, remains that the first document allegedly creating ( sic ) tenancy rights was false and fabricated and hence, all subsequent documents based on it, pale into insignificance and claim of the respondent No. 3 falls to the ground. 35. Considering the entire facts and circumstances of the case and having regard to the above opinion formed by the Court, it is not necessary to relegate the parties to the competent rent Court. Even otherwise, this Court has an ample power under section 446(2) of the Companies Act, 1956 to entertain and dispose of any suit or application by or against the Company. This Court, therefore, holds that the respondent No. 3 was never and is not the tenant of the Mills Company-in-liquidation. His possession is that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
