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TMI Blog2012 (9) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... artments (P) Ltd. The financial condition of Incandescent became precarious resulting in a BIFR proceeding where it was declared as a "Sick industrial company". By an order dated July 25, 2002 BIFR recommended winding up of Incandescent and this Court ultimately passed an order of winding up vide order dated September 24, 2002. Since then the Official Liquidator would be in deemed possession of all the assets of the company in liquidation including the bungalow in question. According to Tivoli Park, they did not have any information about the BIFR proceeding or the subsequent order of winding up. They were getting rent month by month. They came to know of the order of winding up from an advertisement published by the Official Liquidator in Media inviting offer for sale of the assets of the company in liquidation. They wrote letter to the Official Liquidator on August 22, 2005, asking the Official Liquidator to deliver vacant possession of the premises in question as according to them tenancy stood terminated in view of the order of winding up. The Official Liquidator subsequently contended, he did not take possession of the bungalow. In fact, Official Liquidator did not know of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commendation of winding up. Wacoma relied on receipts for few months to show that Tivoli Park accepted rent from them. The contents of the receipt are extracted below : "Received from M/s Wellman Wacoma Ltd. cheque No.xxx dated xxx for Rs.825.00 drawn on Bank of Baroda, Hazra Road Branch as rent for the month of xxx being bungalow No. 5 Tivoli Park, 225 B A.J.C. Bose Road Kolkata-700 020". The receipt was signed by someone whose initial was illegible. The receipt would not contain any seal of the company. Needless to say, Tivoli Park denied such receipt being issued. According to them, those payments, although made by Wacoma, were credited towards Incandescent. Tivoli Park also disclosed receipt issued in favour of Incandescent who issued the cheque even in August 2002 that would demolish the claim of fresh tenancy being created in March 2002. His Lordship considered the evidence and observed, "since I do not find any evidence which can even remotely suggest the termination of Incandescent's tenancy and formation of a new tenancy in favour of Wacoma as asserted by Wacoma before the order of winding up at any point of time I should and do accept that the tenancy of Incandescent wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Kumar Das Vs. Jagdish Chandra Deo, Dhabal Deb & Anr. reported in All India Reported 1952 Supreme Court page-23 2. United Bank of India Vs. Official Liquidator & Ors. reported in Volume-79 Company Cases page-262 3. Asoka Ghose & Ors. Vs. Official Liquidator, Remington Rand of India Ltd. (In Liquidation) reported in Volume-121 Company Cases page-229. Mr. S.B. Mookherjee, learned Senior Counsel contended, Tivoli park was admittedly the owner of the bungalow in question that was not in dispute. Wacoma admitted Tivoli Park as their landlord. They filed a suit, claiming declaration as to the tenancy. They filed application under Section 446 to decide on the controversy. Both proceedings were withdrawn. They did not prove the tenancy allegedly created in their favour in March 2002 or at any point of time. Hence, Tivoli Park was entitled to an order of disclaimer that was rightly passed by His Lordship. Commenting on the receipts Mr. Mookherjee contended, mere receipt of any sum on account of rent or otherwise would not ipso facto create any tenancy. In any event, their claim for alleged surrender of tenancy and creation of new tenancy in favour of Wacoma in March 2002 stood demoli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g nonsalable and non-transferable could not be transferred. Any transfer of tenancy without the consent of the landlord was illegal under the provisions of West Bengal Premises Tenancy Act, 1956, since repealed and West Bengal Premises Tenancy Act, 1997. He referred to Section 14 of the old law and Section 5(6) of the new law in this regard. He cited the decision in the case of Amar Kumar Sen Vs. Gita Rani Das & Ors. reported in 2005 Volume-13 Supreme Court Cases page-83 to say that unless there was any break in relationship between the landlord and tenant, there could not be any new relationship established on the self-same property. He relied upon the decision in the case of Prudential Capital Market Ltd. reported in 2011 Volume 168 Company Cases page-425. The Division Bench of our Court held that Sections 441, 446, 447, 456, 457, 535, 536 and 537 would have combined application in a case of the likenature. Our Division Bench considered the monthly tenancy in favour of the company in liquidation and held that such summary adjudication was the due process of law as established by the judicial pronouncement in the case of Vidyadhar Upadhyay (supra). To counteract the submissions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in the case of Tata Steel Ltd. Vs. Official Liquidator reported in 2008 Volume 143 Company Cases page-563. Mr. Mookherjee prayed for dismissal of the appeal. Mr. Susanta Datta, learned Counsel appearing for the Official Liquidator contended, Official Liquidator did not know about the tenancy at the initial stage. Hence, they could not make any attempt to take possession. After receipt of the notice for disclaimer, the Official Liquidator attempted to take possession. Such attempt failed, as Wacoma resisted such attempt. Mr. Datta contended, this Court should consider the records and pleadings and pass appropriate order as would be just and proper in the instant case. In short, he left the issue at our discretion. While giving reply, Mr. P.C. Sen, learned Senior Counsel appearing for the Wacoma contended, the fact that Wacoma was in possession since March, 2002, was not in dispute, as it would appear from the evidence of Dalveer Singhee, particularly his reply to question No. 1059 appearing at page-186 of the paper book (Volume-II). Hence, Tivoli was not entitled to ask for summary eviction against Wacoma without availing due process of law. Mr. Sen relied on Section 535(6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed. In the instant case, Wacoma was not a party at all. In the application under Section 535, no allegation of wrongful possession or trespass was ever made by Tivoli as against Wacoma. Hence, the said application was not at all maintainable. According to Mr. Sen, when a statutory provision was invoked, it should be followed in all respect and any partial compliance would not suffice. In case of Sakow Industries (supra), the Court dealt with a long lease and the tenant did not have any protection under the tenancy law. In any event, such decision was contrary to the settled proposition of law. In any event, the ratio decided, would not be applicable as Wacoma was entitled to the protection of tenancy law, that was absent in Sakow Industries (supra). Distinguishing the decision of the Apex Court in the case of Amar Kumar Sen (supra), Mr. Sen contended that the said decision would relate to a civil proceeding that would have no bearing in the instant case. Commenting on the decision of General Radio (supra) Mr. Sen contended that the said decision was had considering a scheme of amalgamation that would have no relevance in the present case. Relying on paragraph-27 of the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placing rival claim on the same resisting the applicant who was claiming for disclaimer. At the end of the day, it might be a lis between X and Y, having a rival claim on the selfsame property, that would come within the scope of Section 535. Once it is proved, as on the date of liquidation, the company in liquidation had interest over it, the learned Company Judge should consider whether to disclaim the said property or not. If the learned Judge is satisfied, he would disclaim it as a consequence. Question would further remain, in whose favour it is to be disclaimed. The answer would be obviously in favour of the applicant, if there was no rival claim. If there was a rival claim, the learned Judge also would have to decide such issue. The above, is our understanding of the law on the subject. Let us now apply the same in the present factual matrix. Incandescent was a tenant in respect of the property under Tivoli, since 1970. Admittedly, there was no evidence that the tenancy was terminated at any point of time. Unless the tenancy is terminated, it would continue to remain. If a tenant defaults in making payment of rent, the tenancy does not automatically come to an end. It wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redence to the case made out by Wacoma, we would still be in difficulty to get a plausible answer as to why Incandescent paid rent in August 2002 if it had already surrendered the tenancy and caused Wacoma to step in its shoes in March, 2002. The learned Judge meticulously scanned the evidence. We need not deliberate in detail. We view the controversy from a close angle and in a narrow campus. We would find Incandescent, a tenant since 1970 under Tivoli. It is well-settled principle of law, a tenant cannot question the owner's right over the property in which he is a tenant. In short, a tenant cannot dispute the title of his landlord. We do not know what litigation Tivoli was facing from its landlord. As on date landlord did not come to contest the claim of Tivoli. Wacoma also claimed tenancy under Tivoli. Hence, they cannot dispute its title. Incandescent paid rent up to August 2002. It went in liquidation in September 2002. Hence, the case made out by Wacoma that they got the tenancy under Tivoli through Sutodia in March, 2002, falls to the ground. Mr. Sen lastly contended, the Division Bench while admitting the appeal put Wacoma on terms. Wacoma is now paying occupation char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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