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TMI Blog2006 (2) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... succeeds in obtaining negotiated terms with the appellant or the land is cleared and the possession thereof is given back to the appellant fully. 2. The facts giving rise to filing of the present application may be summed up thus: ( a )By an indenture of lease dated 14-2-1969 between the Governor of the State of West Bengal and the company-in-liquidation, a 99 years lease commencing from 1-9-1968 was executed with an option to the lessee to review the lease for another 99 years. By another indenture of lease dated 19-2-1991 the State of West Bengal demised to the company-in-liquidation in area of 260 Sq. ft. at a monthly rental of Rs. 26.72 which would to be reduced to Rs. 8.60 per year after the expiry of 30 years. ( b )The said company, viz., Wellman Incandescent Limited had been wound up by an order dated 24-9-2002 passed by a learned Single Judge in B.I.F.R. Case No. 55 of 1998 and the Official Liquidator, High Court had been appointed the Liquidator of the said company. ( c )After the order of winding up was passed, the West Bengal Small Industries Development Corporation [hereinafter referred to as (WBSIDC)] filed an application under section 535 of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus : ( i )The applicant has been constituted by the Government of India for administering and managing the Stressed Assets of Industrial Development Bank of India (IDBI) with a view to recovering the amount due thereunder and by a deed of assignment dated 31-9-2004 executed by IDBI, the said IDBI unconditionally and irrevocably sold, assigned, transferred and released to the applicant all the loans granted by IDBI including the principal, interest and other dues payable by the defaulters to IDBI. ( ii )The IDBI had granted loans to the company-in-liquidation against the security of mortgage and hypothecation of all the assets of the company-in-liqulidation and thus, the IDBI and the applicant, viz., SASF is the secured creditor of the company-in-liquidation and they are entitled to enforce the securities by sale of all the assets and properties of the company-in-liquidation. ( iii )In the lease deed executed by the State of West Bengal in favour of the company-in-liquidation, there was specific provision enabling the lessee to mortgage, charge and hypothecate or otherwise encumber the leasehold interest in the demised premises, namely, land, sheds, fittings, fixtures and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. 8. After recording such statement, the Division Bench allowed the Official Liquidator to occupy the property on payment of Rs. 30,000 a month to the appellant till negotiation with N.R.G. Trading Limited was completed or the land was acquired and possession thereof was given back to the appellant fully as the Division Bench was of the view that the same was the correct approach in the given situation. 9. In our view, the leasehold interest of the company-in-liquidation being an asset of the company-in-liquidation, the same can only be disclaimed under section 535 of the Companies Act if the conditions mentioned in the said section are complied with and it appears to the Company Court that the terms of the lease are onerous. As pointed out by the Division Bench itself, the leasehold interest was created at a very nominal rent and thus, it cannot be said that the terms of the lease was onerous. Therefore, strictly speaking, on the basis of the finding of the Division Bench, the appellant could not get any relief in terms of section 535 of the Act. 10. Mr. Chowdhury the learned senior advocate appearing on behalf of the appellant, however, strenuously conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication, it can grant such relief notwithstanding wrong description of the application. 13. In the case before us, the property being in possession of court through Official Liquidator, the lessor of the land was entitled to approach the Court for release of the land provided it could show that it had the right to get back immediate possession for the wrongful act on the part of the company-in-liquidation before passing of order of winding up. It appears from the record that the Division Bench did not take into consideration this aspect at all. 14. Although Mr. Chowdhury tried to impress us that the tenancy of the company-in-liquidation is governed by the provisions contained in West Bengal Government Premises (Tenancy) Regulation Act, 1976 and as such, the terms of the lease have become inconsequential, we are not at all impressed by such submission because the grant in favour of the company was made prior to coming into operation of that Act and there is specific time limit for 99 years with further options of renewal. By subsequent enactment of the said Act the right created in favour of the company-in-liquidation has not been taken away as there is no indication in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to eject such tenant has accrued in favour of lessor in terms of the lease-deed and in such a case if the Company Court is satisfied, it can allow the landlord to take recourse of appropriate proceeding under the Act thereby giving permission to the Official Liquidator to contest the pro-ceeding; if it is satisfied that such determination has already been made in accordance with provisions of law it can simply direct the Official Liquidator to hand over possession to the lessor, but no question of surrender of tenancy suo motu arises unless the terms of the tenancy is onerous as pointed out by the Apex Court in case of United Bank of India v. Official Liquidator [1994] 1 SCC 575. 19. As regards the other unreported decision in case of Lal Mohan Nandy v. Executive Director West Bengal Small Scale Industries Development Corporation Ltd. a Division Bench of this Court held that West Bengal Government Premises (Tenancy Regulation) Act, 1976 applies also to non-residential premises. We have already pointed out that the tenancy of the company-in-liquidation with the Government having been entered into prior to coming into operation of the said Act, the provisions of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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