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TMI Blog2013 (5) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... used in a lesser space in a less expensive locality. If R.P. Techvision was not there, the Official Liquidator would have been in possession thereof. He would have been, had he retained the property, in all probability, been liable to pay Rs. 6.14 lacs per month as occupation charges to Calcutta Business Centre. Now, the Official Liquidator does not have to pay these occupation charges. It is paid in a round about way. R.P. Techvision is making payment to the Official Liquidator who is handing it over to Calcutta Business Centre. Somebody else is occupying the property in place of the Official Liquidator and paying occupation charges directly to the landlord. The Official Liquidator cannot and even if he be permitted by the Court will get nothing, if he tries to assign his rights of a trespasser in favour of somebody else. R.P. Techvision cannot remain on the property. The Official Liquidator has to disclaim the property or this Court has to pass orders for eviction of R.P. Techvision and delivery of vacant possession to the Official Liquidator. He has to do so for another reason. Being a statutory authority, the Official liquidator is duty bound to give back the property, over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Advocate with Ms. Suchismita Chatterjee, Mr. Debdatta Sen, Mr. Siddhartha Chatterjee, Advocates, Mr. Jayanta Mitra, Senior Advocate Mr. Sudipto Sarkar, Senior Advocate, Mr. Pratap Chatterjee, Senior Advocate, Mr. Bhaskar Sen, Senior Advocate, Mr. Ranjan Deb, Senior Advocate with, Mr. Utpal Bose, Mr. Ratnanko Banerjee, Mr. Malay Ghosh, Mr. Amitesh Banerjee, Ms. Lopita Banerjee, Advocates. JUDGMENT I. P. Mukerji, J. Brief Facts:- Kolkata T.V. is a fairly popular Bengali news television channel. It is run by a company, R.P. Techvision (I) Pvt. Ltd. This company operates from an area of about 10,000 sq. ft. in a premises numbered as 119, Park Street, Kolkata- 16. The building is called White House . The owner of the property is Calcutta Business Centre. How R.P. Techvision came to occupy this 10,000 sq. ft. area is quite important. Another company Xenitis Info Tech Ltd. occupied this area on or from 1st December, 2005, as a licensee of Calcutta Business Centre. The licence agreement was dated 12th December, 2005 with effect from 1st December, 2005. The licence fee was Rs.6,14,000/- per month. On 21st March, 2006 Xenitis wrote to Calcutta Business Centre to allow S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Side Rules and G.A. No. 1200 of 2008) by Calcutta Business Centre against Xenitis and SST Media for summary judgment and for various other reliefs. Certain interim orders were passed including accepting the proposal of SST Media to pay a sum of Rs.6,14,000/- per month as occupation charges to Calcutta Business Centre without prejudice to the rights and contentions of the parties. Meanwhile on an application under Section 433, 434 and 439 of the Companies Act, 1956 instituted in this Court against SST Media by a creditor, on 21st May, 2009, the company was directed to wound up. At or about this time, another entity entered the field. Its name was R.P. Techvision (I) Pvt. Ltd. It appears that in or about September, 2009 the employees of the SST Media took out an application under Section 466 of the Companies Act 1956 (C.A. No. 651 of 2009) to bring R.P. Techvision to revive the company in liquidation on the basis, of a scheme to be presented before the Court. On 1st September, 2009 this Court stayed the winding up. It seems that immediately on stay of the winding up if not earlier, R.P. Techvision took over the business of SST Media. They started operating from the said proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We hereby direct the business of the Company in liquidation to be sold by the Liquidator as a going concern by public auction. In the auction, the petitioner herein will have a right to bid and to claim the amounts spent by the petitioner after passing of the winding-up order on 21st May, 2009, for keeping the channel in operation, including, payment of salary to the workers (300 workers). The amount spent post winding-up has been shown by the Court appointed Auditor in two Reports in the aggregate sum of Rs.19,78,68,334.84. The Reports are dated 1st October, 2010 and 14th January, 2011, respectively. It is further clarified that the advertisement for public auction shall indicate the actual amount spent by the petitioner herein during the post-winding up period as per the certificate of the Auditor appointed by the Court. Needless to add that the sale will go for confirmation before the Company Court and at that time, it would be open to the petitioner herein to seek adjustment of the amount paid by it during the post-winding up period in case the petitioner becomes the highest bidder in the public auction. We once again make it clear that our Order passed today will not preju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the fate of the winding up of the Company and the consequential sale of its assets and business, Calcutta Business Centre wanted the property back. It could not be part of the assets of the company in liquidation. The Official Liquidator was obliged to disclaim the property under S. 535 as it was onerous. Furthermore, once the Company was in liquidation, the Company Court had the absolute right to decide on the right of any person occupying the company s property. If such a person was found to be a trespasser this Court had the right to evict such person under Section 446 of the Act. Calcutta Business Centre claimed the right to receive the property by a decree to be passed by this Court in the Civil Suit filed by it or in the alternative by exercise of a right of disclaimer by the Official Liquidator under Section 535 of the Companies Act or by the exercise of powers under S. 446 or both. It was argued before me that any other assets apart from the above movables which the company could possibly possess were its technical skill and goodwill. On the other hand the defence of R.P. Techvision was that by the above Supreme Court order the property had to be sold as a going conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first defendant a business as a going concern. 11. Mrs. Shenoi made an attempt to draw a distinction between what she called a running business and a business as a going concern. It is not necessary to dwell at length upon this distinction. What we have to find out is whether there was a business as a going concern which could have been transferred or assigned by the first defendant to the second defendant. If a business is to be characterised as a going concern that business must be run at the time of the assignment. In other words, the business must be a live business, a going business where transactions take place from time to time though not with clockwise regularity. For a business to go on, there must be a stock-in-trade in the suit premises. On the other hand if, as the first defendant himself has admitted, for more than a year before the date of assignment no transaction has taken place at all in the suit premises and his business had come to a standstill, then one cannot resist the conclusion that there was no stock-intrade at all in the suit premises which could have been transferred as has been purportedly done under Exhibit 77. 12. One test of determining as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidator of the company, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, or done anything in pursuance of the contract, may, with the leave of the [Tribunal] and subject to the provisions of this section, by writing signed by him, at any time within twelve month after the commencement of the winding up or such extended period as may be allowed by the [Tribunal], disclaim the property: . (2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest, and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person. In United Bank of India Vs. Official Liquidator and Ors reported in (1994) 79 Company Cases 262 cited by Mr. Mitra, the Supreme Court opined as follows: While the aforesaid direction will dispose of the appeal, we would like to say, having heard counsel on the merits of the appeal, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of (a) any suit or proceeding by or against the company; (b) any claim made by or against the company (including claims by or against any of its branches in India); (c) any application made under section 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or rise in course of the winding up of the company, Whether such suit or proceeding has been instituted or is instituted or such claim or question has arisen or arises or such application has been made or is made before or after the order for the winding up of the company, or before or after the commencement of the Companies (Amendment) Act, 1960 (65 of 1960).] A division bench of this Court in the case of Wellman Wacoma Ltd. Vs. Tivoli Park Apartments (P) Ltd. reported in (2012) 4 CHN 645, cited by Mr. Chakrabarty remarked that Section 446 of the Act had to be read and applied in conjunction with Section 535. Adjudication of any claim by or against the company under these sections, on affidavits could be termed as the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is the case, the property is of no value to the company. He is justified in disclaiming it. It is quite undisputed and reasonably clear that the company in liquidation was and thereafter R.P. Techvision is more or less a trespasser on the property. The licence has been terminated or at any rate it has expired. No higher right was even claimed by R.P. Techvision. Now, how is the property used? It is of no use for the purpose of carrying on the winding up of the company. The company has a lot of equipments, apparatus, accessories and other moveable items in it, which are undoubtedly its assets. They could easily be housed in a lesser space in a less expensive locality. If R.P. Techvision was not there, the Official Liquidator would have been in possession thereof. He would have been, had he retained the property, in all probability, been liable to pay Rs. 6.14 lacs per month as occupation charges to Calcutta Business Centre. Now, the Official Liquidator does not have to pay these occupation charges. It is paid in a round about way. R.P. Techvision is making payment to the Official Liquidator who is handing it over to Calcutta Business Centre. In other words, somebody else is o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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