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TMI Blog2015 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... By the first order, the learned Company Judge directed the Official Liquidator to disclaim the said property, to evict the appellant from the said property, if necessary, by use of police force and handover possession of the property to the respondent no. 2, latest by June 15, 2014. The Official Liquidator did not comply with the first order, the respondent no. 2 sought execution of the first order, and the second order dated October 30, 2014, was passed directing the Police Authorities to render all help and assistance to the Official Liquidator to handover vacant possession of the said property to the respondent no. 2. Both the appeals are filed by the purchaser of the business of the company in liquidation, SST Media Private Limited (hereinafter referred to as "SST Media"). The respondent no. 2, let out the said property to a company, Xenitis Infotech Ltd. as a licensee, for a period of three years from December 01, 2005, at a monthly fee of Rs. 6,14,000/-. In March, 2006 Xenitis Infotech Ltd. requested the respondent no. 2 to allow its sister concern the said SST Media to carry on its business activities from the said property. Thereafter, the said SST Media started to use th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oulder the liability of SST Media (the company in liquidation) and the appellant in these appeals, is only interested in taking over the business of popular "Kolkata TV" keeping the large body of the creditors at bay for all time to come. By the said order the learned Company Judge rejected all the said applications of the employees and directed the Official Liquidator to resume possession forthwith. The said order dated January 08, 2010 was carried to the Division Bench, first by the workers of SST Media. The Division Bench initially admitted the appeal and stayed all further winding up proceeding. However, by an order dated February 16, 2010 the Division Bench dismissed the said appeal and a special leave petition filed against the said order, by applicants/workers, was withdrawn on February 25, 2010. Thereafter, the appellant, who was allowed to run the business of SST Media by virtue of interim orders passed by the learned Company Judge, filed an appeal from the said order dated January 08, 2010 which was also dismissed by the Division Bench on April 16, 2010. The appellant filed a special leave petition against the said order of dismissal dated April 16, 2010. By orders dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid date any occupier of the said property would be liable to be evicted by the Official Liquidator by using of police force. The learned Company Judge held that if the appellant is the successful buyer they should find another place to do the same business after Mar 31, 2014 and any other buyer should do likewise. The Company Judge specifically directed that the said decision dated May 14, 2013 would be treated as judgment and decree. In terms of the said order dated May 14, 2013 the Official Liquidator issued the sale notice dated June 14, 2013, (hereinafter referred to as "the said sale notice") which was duly published in the newspaper. The sale notice expressly stated that the business of SST Media was lying situated at the said property and that the successful purchaser will have to vacate the said property before May 31, 2014. The appellant accepted the terms and conditions the said sale notice and submitted its offer of Rs. 42,61,30,557.70/- to the Official Liquidator. The appellant was the only offer or and by an order dated March 28, 2014 the Company Judge accepted the offer of the appellant. Although the Official Liquidator complied with the said order dated May 14, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Section 535 of the Companies Act and the subsections thereof it is evident that the property which can be disclaimed must be the property of the company in liquidation and the said property must be onerous for the Official Liquidator. He submitted "property" has not been defined in the said Act of 1956 and the word "property" is to be construed with widest amplitude. He contended that in the instant case, there is no proof that the SST Media was in possession of the said property or it had any right or interest in respect of the said property and even the Official Liquidator did not claim to have taken possession of the said property. Mr. Mookherjee relied on the observation of the learned Company Judge in the impugned judgment that if the appellant was not there, the Official Liquidator would have been in possession of the said property and submitted that such observation substantiates that the Official Liquidator was not in possession of the said property. According to Mr. Mookherjee, even in the sale notice there is no mention of the said property to be in possession of SST Media or the Official Liquidator. In support of his aforesaid contention Mr. Mookherjee first relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded the appellant filed the appeal against the said order dated May 14, 2013 in November 10, 2014, after purchasing the business of SST Media as a going concern subject to the condition stipulated in the sale notice that the buyer will have to vacate the said property before May 31, 2014. Mr. Bose contented that having accepted the sale notice stipulating the said condition the appellant elected to accept the entirety of the said order dated May 14, 2013 and the sale notice. Thus, according to him, the appellant is estopped from challenging the portion of the said order dated May 14, 2013 directing the Official Liquidator to disclaim the said property and make over vacant possession of the said property to the respondent no. 2. Mr. Bose further submitted that by the said order dated May 14, 2013 the learned Company Judge had even granted breathing time of one year till May 31, 2014 to the appellant to vacate the said property and the appellant did not prefer appeal within such period. He strenuously argued that the appellant took the benefit of the said order dated May 14, 2013, and participated in the auction held by the Official Liquidator for sale of the business of SST Media ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid property is absolutely misconceived. With regard to the issue of the Official Liquidator's possession of the said property, Mr. Bose relied on Section 456(2) of the Companies Act, providing that from the date of the order of winding up of a company, the company's assets and properties shall be deemed to be in the custody of the Official Liquidator. He also pointed out that in paragraph 20 of the stay application filed by the appellant in the first appeal, the appellant itself has made the averment that the property was under possession of the Official Liquidator by reason of the fact that the assets of the company in liquidation was housed thereat. Mr. Bose contended, in any event the business of SST Media together with all, the plants, machinery and equipments of SST Media have already been sold and as such the occupation of the said property by the Official Liquidator with the liability to pay monthly occupation charges of Rs. 6,14,000/- shall be absolutely onerous for the Official Liquidator. He submitted that since the appeal being APO No. 444 of 2014, against the order dated May 14, 2013 is liable to be rejected, consequently the appeal against the order dated October 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchaser shall have to vacate the said property within May 31, 2014. The appellant accepted the direction of the learned Company Judge contained in the said order dated May 14, 2013 for sale of the business of SST Media as also the express condition stipulated in the sale notice issued by the Official Liquidator, and submitted its offer to the Official Liquidator. The appellant purchased the business of the said SST Media along with all plants and machinery and equipment, subject to the condition that it had to vacate the said property on or before May 31, 2014. Thus, after taking benefit of the said sale notice on its own accord, the appellant is estopped from challenging the said order dated May 14, 2013 with the object to wriggle out of its obligation to vacate the said property within May 31, 2014. The appellant accepted both the said order and the stipulation contained in the sale notice, it took benefit of purchasing the said business of SST Media and now the appellant cannot turn a complete volte face and seek to assail the order dated May 14, 2013. It is settled law that a party having benefit under an order, cannot claim that it was valid for one purpose and invalid for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, we find merit in the contention of Mr. Bose that the said order dated January 17, 2011, cannot by any means be construed to deprive the respondent no. 2 of the statutory right provided under Section 535 of the Companies Act or Sections 446, 456 and 457 thereof. The said provisions of the Companies Act provide statutory remedy to the owner for recovery of possession of his/her property from the official liquidator without requirement of filing any eviction suit against the Official Liquidator. Thus, the right of the landlord to invoke Sections 535 and 446 of the Companies Act for recovery of possession of a property from the Official Liquidator is a statutory right for public benefit. It is now trite that the principle of estoppel has no application when the statutory rights and liabilities are involved. In this regard, we are strengthened by the decision of the Supreme Court in the case of P.R. Deshpande (supra) relied upon by Mr. Mookherjee (para 9). Thus, we have no hesitation to hold that the respondent no. 2 was entitled to file the said disclaimer application. Now with regard to the merit of the said disclaimer application, according to the appellant, the conditions prescr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench the appellant admitted that the said property was under possession of the Official Liquidator by reason of the fact that the assets of the company in liquidation housed thereat. In any event in terms of Section 456(2) of the Companies Act after passing of the order of winding up dated May 21, 2009, the Official Liquidator shall be deemed to be in possession of the said property. Thus, we cannot accept the contention of the appellant that any observation of the learned Company Judge, in the first impugned order suggests that the Official Liquidator was not, in possession of the said property. In the facts of the case as discussed above, we are even unable to accept the contention of the appellant that the said property is not onerous for the Official Liquidator. The business of SST Media, the company in liquidation, including all its assets, plant and equipments have been sold to the appellant. As was held by the said order dated January 08, 2010, the liability of the company in liquidation was in the region of Rs. 74 crores. Now so long as the Official Liquidator does not disclaim and hand over possession of the said property, it remains liable to pay Rs. 6.14 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Single Judge created a tenancy in favour of the said purchaser. This was contrary to the provisions contained in Section 14 of the West Bengal Tenancy Act, 1956 as also the wellsettled principle of law that a Court of law cannot create a tenancy, that too, against specific objection of the landlord. With the expiry on May 31, 2014 the Official Liquidator was also duty bound to comply with the said order dated May 14, 2013, to have the appellant evicted from the said property by use of police force and make over possession of the said property to the respondent no. 2. We, however, find that the Official Liquidator was loathe to take steps to comply with the said portion of the order dated May 14, 2013 passed by the learned Company Judge. In the instant case, from the conduct of the appellant it is evident that it was all along interested to wrongfully continue to occupy the said property and we find total lack of bona fide on the part of the appellant to file these appeals. It is further interesting to note, while in the Memo of Appeal filed in the second appeal, the appellant states that they are looking for a new accommodation to carry on their business, still they strenuou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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