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TMI Blog2014 (1) TMI 1573X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of time would get dissolved. Same is the situation here; once the company stood dissolved the tenancy would automatically perish. The order of amalgamation, although an order in rem, is rendered at the instance of the shareholders of both the companies including the transferor tenant hence, the Order of Amalgamation would not protect the tenancy. Shareholders of the transferor Company decided to merge with Ambalal. It was their wisdom that would have no bearing on the landlord who was not taken in confidence. Be it assignment, be it transfer, be it sub-letting, the tenancy is a non-transferable object that could only extend to others either by an explicit contract or by a clear statute. In the present case, neither there is any statute law to support transfer of tenancy on amalgamation nor any agreement executed between the landlord and the tenant to deal with such eventuality. Voluntary act of the tenant making its own position vulnerable would have no bearing on the landlord - Decided against Petitioner. - A.P.D. No. 271 of 2013 , C.S. No. 297 of 1989 - - - Dated:- 5-12-2013 - Ashim Kumar Banerjee And Debangsu Basak , JJ. Shyama Prasad Sarkar, Swarnendu Ghosh, Pusha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of M/s. General Radio and Appliances Company Limited and others v. M.A. Khader reported in 1986 Volume-II Supreme Court Cases Page-656 would not be applicable as it was not a case of voluntary transfer. (ii) Assuming the original tenant was dissolved by virtue of the Order of Amalgamation, the landlord would not be entitled to get a decree for possession as by conduct of parties creation of fresh tenancy in favour of Ambalal was established. CASES CITED:- To support his contention, Mr. Sarkar cited the following decisions: (a) APPLICABILITY OF RATIO: 1. Delhi Administration v. Manohar Lal reported in 2002 Volume-VII Supreme Court Cases Page-222. 2. Sanjay Singh and Another v. U.P. Public Service Commission Allahabad and Another reported in 2007 Volume-III Supreme Court Cases Page-720. 3. Dharappa v. Bijapur Coop Milk Producers Societies Union Limited reported in 2007 Volume-IX Supreme Court Cases Page-109. 4. Sumtibai and Others v. Para Finance Company Others reported in 2007 Volume-X Supreme Court Cases Page-82. (b) INTERPRETATION OF PARTICULAR CLAUSE/DOCUMENT: 1. M/s. Girdhari Lal Sons v. Balbir Nath Mathur and others reported in All India R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s would be obliged to follow the law declared by the Apex Court, however, it would be the responsibility of the subordinate Court to apply the ratio considering the facts and circumstances involved in them. The Apex Court also observed, the Court must consider the special circumstances noticed, before applying a ratio decided by the Apex Court. In the case of Sanjay Singh (Supra) the Apex Court observed, every judgment of the superior Court would have three segments: (i) Facts and point at issue (ii) Reasons (iii) Final order The reason for the decision or the ratio decendi is not the final order that could be applied. Considering the facts involved in a given case, similar view was expressed in Dharappa (Supra) and Sumtibai (Supra). The Apex Court considered one of its earlier decisions and observed, the ratio of any decision must be understood in the background of the facts of that case. On a combined reading of the aforesaid decisions the view of the Apex Court so consistently held, would suggest, the precedent could only be applied when facts would tally, any significant difference would make a ratio not applicable. INTERPRETATION OF DOCUMENT: Mr. Sarkar relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company and the Indian Company of the demised premises without any written consent of the respondent as landlord, it is a case of sub-letting within a meaning of section 14(1) (b) of the Act." Similar view was taken in the case of Singer India (Supra) and Sikha Roy Chowdhury (Supra). CREATION OF FRESH TENANCY-CONSENT MUST BE EXPLICIT: Mr. Sarkar would rely upon two decisions to suggest, the parties by their conduct proved a fresh tenancy whereas Mr. Saha would rely upon two Apex Court decisions to support his contention, the consent must be explicit. We want to deal with these two issues at a time. In the case of Ramkumar Das (Supra) the Apex Court observed, the contract to the contrary, as contemplated under Section 106 of the Transfer of Property Act need not be an express contract, it may be implied. In the case of Durgesh Nandini Devi (supra) the parties intended to create a permanent lease, however, the lease was not executed. The tenant came in possession, started paying rent, hence the tenancy was proved. In the case of Shalimar Tar Products (Supra) the Apex Court observed, to constitute sub-letting there must be parting of the legal possession i.e. possession with the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a non-existent entity and in course of time would get dissolved. Same is the situation here; once the company stood dissolved the tenancy would automatically perish. The order of amalgamation, although an order in rem, is rendered at the instance of the shareholders of both the companies including the transferor tenant hence, the Order of Amalgamation would not protect the tenancy. It is true, the recital part of the agreement did provide, tenant would include its successors and assigns however, on a close reading of the said agreement, the recital part being contrary to the specific Clause being Clause 5 and 11 would be nugatory when it would come in conflict with Clause 5 and 11. When the law would prevent sub-letting and the parties decided to contract otherwise such contract must be explicit. In the present case, the shareholders of the transferor Company decided to merge with Ambalal. It was their wisdom that would have no bearing on the landlord who was not taken in confidence. Be it assignment, be it transfer, be it sub-letting, the tenancy is a non-transferable object that could only extend to others either by an explicit contract or by a clear statute. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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