9911796707
TMI Blog2015 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 strenuously urged the first appeal challenging the decision of the leaned Company Judge for disclaimer of the said property. At the same time, we are also disturbed with the conduct of the official liquidator. In spite of the fact that it had sold the business of SST Media property, in terms of the said order dated May 14, 2013, with the express stipulation that the appellant had to vacate the said property on or before May 31, 2014, the Official Liquidator took no step to comply with the said order dated May 14, 2013 passed by the learned Company Judge to disclaim of the said property and hand over possession of the said property, if required with the police assistance, to the respondent no. 2. The Official Liquidator, belatedly issued a letter dated September 8, 2014 requesting the appellant to vacate the said property, but the appellant refused to vacate the said property. Still the Official Liquidator took no step. Thus, the learned Company Judge had to pass the order dated May 30, 2014. We direct the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (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 ₹ 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 the said property as its registered office. However, the said Xenitis Infotech though remained liable for payment of the monthly licence fee to the respondent no. 2, did not pay the licence fee. The respondent no. 2 filed a suit being C.S. No. 74 of 2008, before this Court, against both Xenitis Infotech ( as the defendant no. 1) and SST Media (as the defendant no. 2), for recovery of the outstanding licence fee and possession of the said property. In an application filed in the said suit by an order dated April 17, 2008 a learned Single Judge appointed a Special Officer to ascertain as to the persons in occupation of the said property. By an order dated April 28, 2008 the learned Single Judge recorded that the second defendant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition 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 May 14, 2010 and May 04, 2010 the Supreme Court allowed the business of the SST Media to be run by the appellant and directed the Official Liquidator to pay all outstanding occupation charges in respect of the said property to the respondent no. 2, from the said ₹ 2 crore deposited by the appellant and further to disburse the future occupation charges at the rate of ₹ 6.14 lacs per month, till further order. By an order dated January 17, 2011 the Supreme Court disposed of the said special leave petition by directing, inter alia, that the business of SST Media, the company in liquidation to be sold by the Official Liquidator as a going concern by public auction, to be confirmed by the Company Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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, 2013 for completion of the sale of the business of SST Media, the Official Liquidator took no step to comply with the other portion of the said order for the disclaimer of the said property or hand over vacant possession of the said property to the respondent no. 2 within May 31, 2014. It was only on September 8, 2014, after the receipt of a letter from the respondent no. 2, the Official Liquidator requested the appellant to hand over possession of the said property. On September 20, 2014 the respondent no. 2 filed an application, being C.A. No. 587 of 2014 under Section 634 of the Companies Act, 1956, before the Company Judge praying for an order directing the Official Liquidator, to hand over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on the decision of Chancery Division in the case of Re Potters Oils Ltd. reported in [1985] BCLC 203, where the Court rejected an application of the liquidator to disclaim a property in respect of which the company in liquidation had no right or interest. He further placed before us the a decision of the Division Bench of this Court in the case of Wellman Wacoma Ltd. Vs. Tivoli Park Apartments (P) Ltd. reported in [2014] 182 Comp. Cas 347 (Cal) and submitted that in that case the Division Bench allowed the disclaimer application of the relevant property as it was proved that the company in liquidation was a tenant, had interest over the subject property and that an unauthorized occupant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 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 on the basis of the sale notice, with express stipulation that the purchaser has to vacate the said property within May 31, 2014. Thus, according, Mr. Bose, the appellant cannot approbate and reprobate and in support of such contention he cited on the decisions of the Supreme Court in the cases of New Bihar Biri Leaves Co. and Ors,. Vs. State of Bihar reported in (1981) 1 SCC 537 (paras 48 to 49) and Mumbai International Airport Pvt. Ltd. Vs. Golden Chariot Airport reported in (2010) 10 SCC 422 (paras 43 to 54). In those decisions, the Supreme Court held that a party taking benefit from a transaction or contract is estopped from repudiating the other part of the same contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ₹ 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, 2014 is also liable to be rejected. Mrs. Ruma Sikder appearing for the Official Liquidator submitted that on February 21, 2011 the Official Liquidator had taken symbolic possession of all the assets and properties of the company including the said property. In reply Mr. S.N. Mookherjee, learned Senior Advocate strenuously argued that the contention of the respondent no. 2 that the appellant is estopped from challenging the said the first order dated May 14, 2013, is misconceived and none of the said decisions in the cases Bihar Biri Leaves Co. (Supra) and Mumbai International Airport Pvt. Ltd. (Supra) has any application in the instant case. Mr. Mookherjee submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 another. Thus, we find merit in the contention of Mr. Bose that the appellant cannot approbate and reprobate. We find that the ratio of the decision of the Supreme Court in the cases cited by Mr. Bose, Bihar Biri Leaves Co. (Supra) and Mumbai International Airport Pvt. Ltd. (Supra) that a person cannot approbate and reprobate is squarely applicable in this case. In equity, a person drawing benefit from a transaction is not permitted to escape from the disadvantage, if any flowing from it. In the instant case the appellant is estopped from challenging the said order dated May 14, 2013 as it accepted the benefit of the sale notice containing the stipulation fixed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory 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 prescribed under Section 535 of the Companies Act for disclaimer of the property was not fulfilled in the instant case. We are afraid that we are unable to convince ourselves to find any merit in any of the above contentions of the appellant. First, from the said order dated April 17, 2008 passed by the learned Single Judge in the said CS No. 74 of 2008 it is evident that the said SST Media, the company in liquidation was in the possession of the said property. Before its winding up the said SST Media filed the suit before the learned City Civil Court at Calcutta against the respondent no. 2 and obtained an interim order restraining the respondent no. 2/own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 6.14 lacs per month to the respondent no. 2. The occupation of the said property by in Official Liquidator is not required for beneficial winding up of SST Media. Therefore, there cannot be any doubt that the said property is onerous for the Official Liquidator. Mr. Mookherjee, on behalf of the appellant also contended that the said eviction suit would be the due process of law which should be pursued by the respondent no. 2 for obtaining possession of the said property. Mr. Bose submitted that it is well settled principle of law that a proceeding under Section 446 or Section 535 of the Companies Act, 1956 adjudicating the right of the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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 strenuously urged the first appeal challenging the decision of the leaned Company Judge for disclaimer of the said property. At the same time, we are also disturbed with the conduct of the official liquidator. In spite of the fact that it had sold the business of SST Media property, in terms of the said order dated May 14, 2013, with the express stipulation that the appellant had to vacate the said property on or before May 31, 2014, the Official Liquidator took no step to comply with the said order dated May 14, 2013 passed by the learned Company Judge to disclaim of the said property and hand over possession of the said property, if requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
