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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 ..... escent had gone in liquidation in September 2002. There was evidence on record to show that Incandescent paid rent even in August 2002. Wacoma claimed tenancy since April 2002, on the strength of the receipts, thus there could not be two tenancies in respect of one self-same premises. Incandescent paid rent even in August 2002 that would automatically demolish the case of Wacoma, having entered into agreement for tenancy in March, 2002. Pertinent to note, Wacoma could not produce any document except the receipts to prove their tenancy - in absence of a surrender of tenancy by Incandescent there could not be any new tenancy created in favour of Wacoma - Incandescent paid rent up to August 2002 and as 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. The company in liquidation admittedly does not own the property Tivoli cannot be forced either to sell or let it out to Wacoma as Court cannot create tenancy without the consent of the landlord. - A.P.O. No. 316 of 2011, BIFR No. 55 of 1998 - - - Dated:- 4-9-2012 - Mr. Justice Ashim Kumar Banerjee, Mr. Justice Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises on May 5, 2006 when he was resisted by one Suman Basu, claiming to be an Executive of Wellman Wacoma Ltd. (hereinafter referred to as Wacoma ), a company claiming to be a tenant of the self-same bungalow. Suman however could not produce any agreement for tenancy or any rent receipt. He supported his act by production of telephone bill, electric bill and Municipal Trade Licence. Wacoma approached the learned Company Judge on May 10, 2006 inter alia praying for an order of restraint on the Official Liquidator from interfering with their possession. Wacoma subsequently filed a suit in the Alipore Court inter alia praying for a declaration that Tivoli Park had no right to obstruct ingress and egress of Wacoma to and from the said premises coupled with prayer for permanent injunction and other reliefs. The learned Judge dismissed both the applications. On an appeal by Tivoli Park, the Division Bench set aside the judgment and order dated September 19, 2007 passed on the disclaimer application and directed the said application to be tried on evidence. The Alipore Court suit was also transferred to this Court. Wacoma subsequently withdrew the said suit and did not proceed furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the petitioner, should prove their case through oral and documentary evidence which they failed to do. Mr. Sen contended, even after the order of winding up the Official Liquidator never took possession of the bungalow. The Official Liquidator found Wacoma occupying the said bungalow, hence, by the process of summary trial Wacoma could not be divested of possession. Section 535 could not operate as a mechanism to evict Wacoma who was a lawful tenant discharging their obligation month by month by payment of rent. One Dalveer Singhee deposed on behalf of Tivoli Park who did not have any personal knowledge about the state of affairs in 2002. He deposed, he looked after the company s affairs since 2004 at the request of one Manish Poddar who became a Director of Tivoli Park in 2003. Mr. Sen further contended, Tivoli Park must prove, they had interest in the property and Incandescent was tenant in respect of the premises as on the date of winding up. They did not make any attempt to prove such case before His Lordship. Hence, His Lordship could not have allowed their application for disclaimer. Mr. Sen lastly contended, the property admittedly did not belong to the company in liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this regard. He contended, Section 535 would empower the learned Company Judge to disclaim any onerous property. The tenancy was onerous, as it would attract expenses month by month whereas it would have no worth to support beneficial winding up. Mr. Mookherjee also referred to the evidence to show that Khosla being the Director of both the companies admitted that the possession had been illegally transferred to Wacoma without the consent of Tivili Park. Resuming his argument on the next day Mr. Mookherjee took us to the said Act of 1996, particularly Sections 446, 456 and 535 to contend that on a combined reading of the said provisions, the Court s power to have a summary adjudication on the issue of likenature was permissible. He contended, such extraordinary power was vested upon the Company Court to smooth the beneficial winding up and have a speedy dissolution of the company after its winding up. He relied on two decisions of our Court in the case of Sakow Industries P. Ltd. (In Liquidation) reported in Volume-67 Company Cases page-16 and Vidyadhar Upadhyay Vs. Sree Sree Madan Gopal Jew and Ors. reported in Volume-67 Company Cases page- 394, to support his proposition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon, wherein the Apex Court held that acceptance of rent after expiry of the lease, would not ipso facto operate as renewal. The lessee could not claim that he was holding over as a lessee within the meaning of Section 116 of the Transfer of Property Act, 1882 (hereinafter referred to as the said Act of 1882 ). Mr. Mookherjee distinguished the decision in the case of United Bank of India (supra) by contending that there was substantial difference considering the factual controversy involved in the said matter. He contended that the Apex Court in the case of United Bank of India (supra) considered sub- Section (a) of Section 535 and not sub-Section (c), which would be relevant for consideration in the present case. He distinguished the decision in the case of Ram Kumar Das (supra) by contending that there was substantial difference in factual matrix. In the said case the defendant was a monthly tenant and the tenancy was determined by a notice to quit. The Apex Court considered holding over under Section 116 of the said Act of 1882. In the present case, Wacoma was not a tenant. Hence, question of holding over would not arise. Distinguishing the decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Apex Court left it to the discretion of the learned Single Judge. Learned Single Judge declined to settle any additional issue at a stage when the suit as well as the application under Section 446 had been pending. Hence, His Lordship should have reconsidered the issue in view of withdrawal of the said two proceedings by Wacoma. The learned Single Judge earlier held, Tivoli would have to prove that Incandescent was a tenant on the date of winding up. Such initial onus on the part of Tivoli was not discharged at all that would be apparent from the evidence that was led on its behalf. He referred to the judgment and order impugned appearing at pages 697-728, particularly page 721 to say that the same contained incorrect facts. Mr. Sen made such comment on the observation of His Lordship to the extent that the tenancy in question was not at all terminated. According to Mr. Sen, such observation was contrary to the evidence that was led on behalf of the parties. Mr. Sen then contended, in 2002 Tivoli did not have any title on the property at all. The situation remained the same in 2003-2004, until the issue was resolved with the landlord and a fresh lease was executed after a protrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to Letter for Direction filed by the Official Liquidator and not a regular adversarial proceeding. Hence, it would have no relevance in the instant case. The decision cited at the Bar would predominantly suggest, for beneficial winding up any question that would arise in the course of winding up, pertaining to company in liquidation, could be decided summarily by the Company Court under Section 446. Such power is also extended to a question where the company would have an onerous contract and/or interest that would cause hindrance in the smooth process of beneficial winding up, to be decided summarily in terms of Section 535. It is true that the decision in the case of Sakow Industries (supra) and Vidyadhar (supra) may not have resemblance of facts. We would have to agree with the proposition to the extent that a proceeding either under Section 446 or Section 535 relating to a question pertaining to the company in liquidation, would be the due process of law. Our view is strengthened on a combined reading of Sections 446 and 535 wherein any person, claiming interest over such property is given liberty to approach the learned Judge for appropriate adjudication of right. The pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. If someone commits any breach of the contract of tenancy either by defaulting payment of rent or otherwise, the landlord does not get automatic power to evict him. He would have to approach the Court for a definite order of eviction. In the instant case, Incandescent was paying rent. At one point of time Wacoma was its subsidiary. Subsequently the companies became independent of each other. It might have been correct, Wacoma paid rent for few months for the self-same tenancy. We carefully examined the receipts appearing at pages-40 onwards in the paper book. Those were receipts for acceptance of rent by cheque. The receipts did not acknowledge Wacoma as a tenant. Learned Judge rightly framed the issue, whether the tenancy of Incandescent was surrendered, if so, how Wacoma was inducted. Incandescent had gone in liquidation in September 2002. There was evidence on record to show that Incandescent paid rent even in August 2002. Wacoma claimed tenancy since April 2002, on the strength of the receipts referred to above. There could not be two tenancies in respect of one self-same premises. Incandescent paid rent even in August 2002 that would automatically demolish the case of Wacoma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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