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TMI Blog2010 (11) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. S.R. Choudhury, S. Dhar and S. Saikia for the Appellant. S.K. Medhi and J. Roy for the Applicant. Sisir Dutta and D. Chakraborty for the Official Respondent. JUDGMENT Amitava Roy, J. This appeal assails the judgment and order dated April 13, 2007, passed by the learned company judge in Company Petition No. 16 of 2006, Company Appeal No. 1 of 2006, M. C. No. 1256 of 2006, M. C. No. 2772 of 2006 and M. C. No. 2771 of 2006. The petitioner in Company Petition No. 16 of 2006, namely the Board of Trustees for the Port of Kolkata also known as the Kolkata Port Trust, Calcutta is the appellant. 2. We have heard Mr. S. R. Choudhury, senior advocate for the appellant, Mr. S. Datta, advocate assisted by Mr. D. Chakraborty, advocate for the official liquidator and Mr. S. K. Medhi, learned counsel for the petitioner in M. C. No. 1192 of 2010. Also heard Mr. J. Roy, advocate for M/s. Scrapt Traders, petitioner in M. C. No. 1466 of 2010. 3. A prefatory recital of the facts in bare essential is an indispensable necessity impelled by the chequered backdrop of the lingering ruction. 4. A plot of land measuring approximately 40460.456 square meters o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e lessor to the lease rent for the period of possession of the lease hold land by the official liquidator was however, declared. 6. In course of the liquidation proceeding, a sale notice dated February 17, 2004 was published for the disposal of the assets of the lessee, which included, inter alia , the lease hold land measuring 40460.456 square meters. The related report of the valuer referred to structures raised by the lessee on the land to house, its factory premises. The report also contained an observation that it would be the responsibility of the new purchaser to negotiate with the Port Trust regarding renewal or transfer of lease and that all payments to it was to be made by the former. In the sale proceedings that followed, M/s. Scrapt Traders was accepted to have offered the highest bid of Rs. 7.20 crores vide order dated June 22, 2004 passed in M. C. No. 1256 of 2006. The amount offered having been deposited in full with the official liquidator, the assets of the lessee including the lease hold land were handed over to the M/s. Scrapt Traders on September 13, 2004. 7. The Port Trust in the above premise, filed Company Application No. 6 of 2004, claiming rent o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to prove the actual quantum of rent due for the period of possession by the official liquidator, whereupon, the latter was to disburse the said amount to the lesser out of the sale proceeds treating it to be a part of the cost and expenses incurred in connection with the winding up of the lessee company. ( viii )It was left open for the parties, namely, M/s. Scrap Traders and the Kolkata Port Trust to negotiate on the question of renewal/transfer of lease on mutual acceptable terms. 9. The official liquidator thereafter, on April 12, 2005 offered to hand over symbolic possession of the leasehold land to the Port Trust as in his opinion, the direction of this court was to deliver legal possession and the same did not signify parting with the physical possession thereof. The Port Trust declined to accept the symbolic possession and registered its demand of Rs. 1,50,86,734, without prejudice to the above on account of rent and escalation charges at the enhanced rate fixed by the schedule to the notification published in the Gazette of India dated December 2, 1999 under section 49 of the Major Port Trusts Act, 1963 for the period from July 16, 2001 to March 31, .2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 005 of this court. In the alternative, a direction was sought for requiring the official liquidator to hand over the vacant physical possession of the leased hold land to it. A further direction for payment of the amount of Rs. 79,05,373 accepted by the official liquidator, was also sought for, subject to the orders as would be passed on its claim for the higher amount based on the enhanced rates embodied in the notification dated December 2, 1999 which was the subject matter of the accompanying Company Appeal No. 1 of 2006. 13. Whereas, M/s. Scrapt Traders by interim application, being M. C. No. 1256 of 2006 sought for a direction from this court to the Port Trust to grant/renew/transfer of the lease in its favour, the Employees' Union of the erstwhile lessee, by applications being M. C. No. 2771 of 2006 and M. C. No. 2776 of 2006, sought intervention in Company Petition No. 16 of 2006 and Company Appeal No. 1 of 2006 with an endeavour to espouse the cause of M/s. Scrapt Traders as above. They endorsed the effort of M/s. Scrapt Traders to this effect to be a wholesome endeavour to restart the operation of the lessee company to facilitate employment and accommodation to its ers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53 and 54 of the Port Act that the appellant-Port Trust being entitled to the lease rent from the period July 16, 2001 in terms of the notifications dated May 14, 1992 and December 2, 1999 issued under section 49 of the Act pertaining to Dock Zone, the learned single judge ought to have interfered with the ascertainment of the liquidator to the contrary and the partial rejection of its claim as conveyed by his letter dated January 9, 2006. Referring to section 49(1)( d ) of the Act, in particular, learned senior counsel has urged that as the said provision does not contemplate any relaxation of the rate of lease rent, the learned single judge ought to have upheld the claim of the appellant-Port Trust in full as laid down by it before the official liquidator. According to Mr. Roy Choudhury, the observation of the learned company judge bearing on want of sacrosanctity of the rates fixed under section 49 being visibly belied thereby and the other cognate provisions of the Port Act under Chapter VI thereof, the very foundation of the sustenance of the decision of the official liquidator being erroneous, the same ought to be interfered with, he insisted. Learned senior counsel, additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the official liquidator to deliver the vacant possession of the leasehold land to the appellant-Port Trust. Learned counsel, however sought to endorse the view taken by the learned company judge on the aspect of the rate of rent and the rejection of the partial claim of lease rent of the appellant-Port Trust. 20. Mr. S .K. Medhi appearing for the three banks, namely, IFCI Ltd., the State Bank of India and the Kotak Mahindra Bank has argued that these as assignees of the ICICI and the IDBI are the three secured creditors whose claims are to be met from the amount at the disposal of the official liquidator. He, therefore, has sought for vacation of the orders dated August 27, 2008 and May 16, 2009 restraining payments therefrom. 21. Mr. Roy for M/s. Scrapt Traders has argued with reference to M. C. No. 1466 of 2010 that as a pre-condition of the delivery of vacant possession of the leasehold land, the official liquidator be directed to take steps for the payment of arrear dues of the workers of the wound up company now employed by the purchaser. 22. We have extended our thoughtful consideration to the rival contentions. The afore recited facts evidencing the progressio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port Trust of Rs. 1,77,47,842.45 was however quantified till October, 2005. 25. Noticeably, the determination in the order dated March 21, 2005 to the effect that the rent payable by the official liquidator ought to be construed to be a part of the expenses incurred for the purpose of winding up of the company in liquidation and that the payment thereof was to be made before the application/apportionment of the value of the assets of the wound up company towards the discharge of any of its other debts has remained uninterfered with and therefore is binding on all concerned. 26. The learned company judge in his order dated March 21, 2005 referred to above had held as well that the delivery of the possession of the leasehold land to M/s. Scrapt Traders by the official liquidator was not sanctioned in law as the latter was not empowered to do so sans express orders of the court. It was, thus held that the legal possession of the land ought to be understood to have continued to remain with the official liquidator on behalf of the court. The official liquidator was thus directed to hand over the legal possession of the land to the appellant-Port Trust. 27. In the impugned ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for rent as due in law. Not only, the official liquidator had wrongly handed over possession of the leasehold land to M/s. Scrapt Traders, in spite of repeated directions of this court, he has failed to hand over vacant physical possession thereof to the appellant-Port Trust till date in spite of a clear direction by this court to do so within three months vide its order dated April 13, 2007. In our view, therefore, the appellant-Port Trust is in the singular facts and circumstances of the case entitled to the rent for the land involved at the enhanced rate of Rs. 773 per hundred square meters per month (as introduced by the notification dated December 2, 1999 under section 49 of the Port Act) on and from July 13, 2007 till actual delivery of the possession thereof by the official liquidator to it. 29. On an analysis of the scheme of imposition and recovery of rates at Ports under Chapter VI of the Act, in our estimate the scale of rates is apparently relatable to the services enumerated in the various sub-clauses of section 48(1) to be performed either by the Board or any other person authorised by it at or in relation to the Port or the Port approaches. The possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant-Port Trust within a period of six weeks therefrom and monthly rent as per the prevailing rate stipulated by the statute every month on or before 7th of each succeeding month. Thereby, liberty was also granted to M/s. Scrapt Traders to undertake the activities of manufacturing containers with the rider that the land would not be put to any other use. 32. In Miscellaneous Case No. 3483 of 2007 filed by the appellant-Port Trust in Company Appeal No. 1 of 2007 this court initially passed an order dated September 24, 2007 debarring the official liquidator from making any disbursement out of the sale proceeds of the assets of the wound up company. In Miscellaneous Case No. 4382 of 2007 in Company Appeal No. 1 of 2007 by order dated January 21, 2008 this court reiterated the above interim restraint for a limited period. This, however, was extended until further order(s) on February 22, 2008. 33. M/s. IFCI Ltd. one of the secured creditors, filed an interim application seeking a modification of the aforementioned interim order(s), which was registered as M. C. No. 2340 of 2008. This court by order dated August 27, 2008 after hearing the parties allowed, the official liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e official liquidator to make payment to the workmen of M/s. HIM Containers Ltd. in liquidation of their entitlements out of the sale proceeds and to grant it six months time to deliver vacant possession of the land after removing its properties. It also indicated the possibility of resistance being offered by the workmen in case their arrear dues were not liquidated. It thus insisted for payment thereof under section 529A of the Act. 36. In the teeth of the decision of the learned company judge as recorded hereinabove disapproving the action of the official liquidator in handing over the physical possession of the leasehold land in favour of M/s. Scrapt Traders and determining the latter's possession thereof to be illegal, its occupation thereof cannot be construed to be on the basis of the renewal of the erstwhile lease or any fresh transaction of the type by and between it and the appellant-Port Trust legalising its (M/s. Scrapt Traders) continuance thereon. The payments made by it in the interregnum were in terms of the interim order(s) of this court as a pre-requisite for the arrangement of keeping in abeyance the directions contained in the impugned judgment and order, or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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