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TMI Blog2007 (12) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... t that overtook the question. 2. The applicant is a lessee under the State Government in respect of vast stretches of land in Jamshedpur. The concerned premises is part of the long lease that the applicant enjoyed originally under the State of Bihar and now enjoys under the State of Jharkhand. The applicant had a right to sub-lease the land, which it did in favour of the company which was once part of the conglomerate to which the applicant belongs. There is a minor matter of the long lease having expired and not being renewed at the time that the applicant instituted the proceedings, but during the pendency the lease has been renewed. 3. The applicant asserts that the Official Liquidator has no use of the land for the beneficial winding up of the company and the funds in the hands of the Official Liquidator, and likely to come out of the assets of the company, would not permit the Official Liquidator to discharge the onerous covenant of paying lease rent in respect of the premises. There is also an earlier suit instituted by the applicant, with leave obtained under section 446 of the Companies Act, 1956 ("the Act"), praying for a decree of eviction against the Official Liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the premises. 8. Upon the applicant praying for a direction on the Official Liquidator to surrender the said property in its favour, Garg applied before this Court seeking leave to intervene in the proceedings. Leave was granted and Garg has used an affidavit. It is Garg's coming in of his own accord that has been fortuitous for the applicant. 9. C.A. No. 86 of 2007 has been taken out by Garg for leave to intervene in C.A. No. 376 of 2006. Pursuant to the leave granted on 12-2-2007, the applicant (the applicant in C.A. No. 376 of 2006 is referred to as the applicant in the entirety of this order) was directed to serve a copy of its application on Garg for Garg to use an affidavit thereto. Garg has filed an affidavit on 27-2-2007 and at least one further affidavit shortly before the conclusion of the matter. Garg narrates the sequence of events following Indian Bank instituting proceedings against the company in liquidation in his attempt to assert his right in respect of the concerned property. According to Garg, the bank valued the said property situated in Jamshedpur at slightly over Rs. 1.5 crores. A special officer was appointed in the bank proceedings and he filed a report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial officer "to ensure the delivery of possession of this structure to the successful purchaser, Mr. Prem Narain Garg and if he finds any difficulty in the delivery of the possession, he may take the necessary police aid at the cost of the successful purchaser". It is such order which Garg adopts as his sheet-anchor and cites as his right to remain at the said premises. Garg exhorts that the Company Court does not sit in appeal over the Debts Recovery Tribunal orders and cannot undo, particularly in these proceedings, the effect of the Tribunal's order by which Garg was put into possession. In terms of the order of 26-2-2004, the special officer appointed by the Tribunal accompanied Garg to Jamshedpur and has recorded in the minutes relied upon in Garg's latest supplementary affidavit, that he "delivered the position (sic)" of the structure at the said premises to Garg. 13. Both Garg's application for delivery of possession and the bank's application for setting aside the order confirming the sale were disposed of by the Debts Recovery Tribunal's order of 19-5-2005. The order confirming the sale was recalled and Garg's application for delivery of possession was dismissed but Gar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent applicant before the Tribunal. The Tribunal's order of 19-5-2005, recorded that the interim sale of the property had been conducted and completed without ascertaining as to whether the property, i.e., the structure of the guest house at 2, Jubilee Road, Jamshedpur, either belongs to the defendant that is SCIL (India) Ltd., under liquidation or to TISCO Ltd. The Tribunal's order is clear and unambiguous : "(1)That the first application filed by the Indian Bank be and the same is allowed and the auction sale of the structure of the guest house at 2, Jubilee Road, Jamshedpur, vide Order No. 34, dated 20-1-2004, of the Debts Recovery Tribunal-II is set aside. (2)In consequence of the order at (1) above, the second application filed by the successful purchaser Prem Narayan Garg is not maintainable and, hence, dismissed. (3)Learned Registrar of the Debts Recovery Tribunal-II is hereby directed to refund the purchase money deposited by the aforesaid successful purchaser in respect of the sale of the structure of the guest house at 2, Jubilee Road, Jamshedpur, within fifteen days from the date of receipt of this order." 16. It would, thus, appear that it was only the structure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenanted premises, but allowed the alleged sub-tenant to occupy a portion of the premises as agent of the Official Liquidator at a high rate of monthly compensation. The alleged sub-tenant had instituted a suit and sought subsequent leave under section 446 of the Act to proceed in such suit. Before the Supreme Court it was established that the landlord had consented to the creation of the sub-tenancy. It was in such circumstances that the Bombay High Court's direction having the effect of dispossessing the alleged sub-tenant, was found to be unwanranted. 20. In the Ashoka Ghose's case (supra) a judgment rendered by a Single Judge of this Court, the actual possession was with a third party and it was held that such third party's interest could not be affected except by due process of law. It does not appear that either the Vidyadhar Upadhyay's case (supra) judgment of the Smt. Pushpa Devi Jhunjhunwalla's case (supra) was cited in the Ashoka Ghose's case (supra) matter. A Division Bench of this Court held in the Vidyadhar Upadhyay's case (supra) that upon notice to the person in occupation, an adjudication of the nature sought by the applicant in the present proceedings may be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property for the beneficial winding up of the company. The payment of the lease rent, however small an amount, is an onerous covenant that the Official Liquidator is unable to discharge, what with the fantastic claims of the priority creditors and the meagre funds fetched by the sale of the company's assets. 24. There is a further aspect. The deed of 1963 provides that any structure that may be constructed on the land by the lessee would belong to the lessor upon expiry of the lease. The applicant has also relied on the judgment at Bhatia Co-operative Housing Society Ltd. v.D.C. Patel AIR 1953 SC 16, or the proposition that a structure constructed on a demised land will vest in the lessor upon the lease expiring. 25. There is no doubt that the land does not belong to the company in liquidation. But, since the applicant had applied before the Debts Recovery Tribunal for being permitted to participate in the sale of the structure, the applicant should be held to its bargain and it having voluntarily relinquished its rights under the deed of 1963 in respect of the structure. The applicant will pay Garg the amount paid by Garg and obtain full rights in respect of the structure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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