9911796707
TMI Blog2005 (6) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay any amount by way of compensation/royalty towards use of the flat situated on the third floor of Gold View Co-operative Housing Society being Flat No. 8 at 126, M.K. Road, Bombay - 20 ? (2) If the answer is in the affirmative, what should be the amount of compensation of the royalty to be recovered from the respondent No. 3 for the user of the said flat till 11th April 2005 ? 3. According to the applicants, the respondent No. 3 is liable to pay compensation for use and occupation of the said flat at least from the date of filing of the Company Petition on 5th September, 2001 till the date of sale of the flat or the same was vacated by the respondent No. 3 in terms of clause 15 of the Minutes of Order dated 27th February, 2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt No. 3 open. 6. To answer this question, in my opinion, as rightly contended by the respondent No. 3, the Court will have to first examine the status of the respondent No. 3. The material on record clearly indicates that the respondent No. 3 was using the disputed premises in the capacity of Director of the Company in liquidation. It also appears that he along with his family was allowed to occupy the disputed premises on gratuitous licence basis by the Company. No charges were recovered from respondent No. 3 for the user of the disputed premises for his residential use. 7. The next question is : whether on the institution of the Company Petition, the status of respondent No. 3 and the arrangement which prevailed between the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assets of the Company and is expected to carry on the contracts of the Company for and in the interest of the Company. 9. As this is the legal position, it necessarily follows that merely with the appointment of provisional liquidator or institution of the Company Petition or any order passed therein, the respondent No. 3 would not cease to be the Director. As the respondent No. 3 continues to be the Director of the Company, the same arrangement for occupation of the premises ought to prevail, until it is expressly terminated between the parties. To get over this position, counsel for the respondent No. 1 contends that passing of the order on 27th February, 2003 was plainly indicative of determination of the arrangement between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent No. 3, who is none other than the Director of the Company and whose status continues to be so by operation of law, so as to continue to occupy the premises in that capacity, which he was entitled to in law on the same terms as prevailed before. In other words, although the order dated 27th February, 2003 has left the question regarding liability to pay compensation by the respondent No. 3 for the user of premises open, that does not mean that there was express determination of the arrangement between the respondent No. 3 and the Company. Even filing of subject Application by the applicants herein does not result in determination of arrangement between respondent No. 3 and the Company. So understood, the respondent No. 3 was entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication by the Court appointing the receiver or relegating the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party." (p. 181) 12. Indeed, there is distinction between the status of the Receiver and that of the Official Liquidator. I am inclined to accept the contention raised on behalf of the respondent No. 3 that the exposition in the case of Anthony C. Leo ( supra ) that in summary proceedings, it is not open to determine issue regarding the rights claimed flowing from some action inter parte, which is pleaded and required to be decided by the proper forum. 13. Counsel for the respondent No. 1, while this judgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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