9911796707
TMI Blog2015 (5) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... ct let-out by the Official Liquidator of the company-in-liquidation to M/s. Mahesh Metal Works. A bare look at the letter/agreement to lease dated 7.4.1960 shows that all of "Patni Bhawan" and its land were not delivered in tenancy on 7.4.1960. Clause 4 of the said letter (7.4.1960) states that "the Manager of the Mills is being requested to deliver possession to you at once and rent will commence from the date of delivery of possession to you." Importantly Clause 3 of the letter in issue states that "In a few rooms some furniture and other material of the Mills is at present locked. These rooms will be placed at your disposal after the goods lying those rooms is sold out. You shall not claim any reduction in rent for the period those rooms remain locked nor shall we claim any extra rent upon the same being vacated and placed at your disposal." There was nothing on record at the instance of the objectors before the Executing Court as to what portion of "Patni Bhawan" and appurtenant lands (including garage and tennis court) was indeed handed over by the Official Liquidator to M/s. Mahesh Metal Works and when. Further there was also no evidence to show which portion of "Patni Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enancy created by the main tenant M/s. Mahesh Metal Works, the judgment & Decree dated 5.2.1987 passed by the Company Court at the instance of the Official Liquidator against the tenant M/s. Mahesh Metal Works would be binding on them. That is however besides the point as in the case at hand, as detailed here in above no sub-tenancy created in favour of the objectors/resistors by M/s. Mahesh Metal Works was proved before the Executing Court. In my considered opinion in the facts of the case the objectors/resistors have no legal right to resist the Judgment & Decree dated 5.2.1987. I also find no force in the contention of the counsel for the objectors/resistors that the Official Liquidator had no authority to move the application bearing No. 21/1980 under sections 446 and 477 of the Act of 1956 before the Company Court seeking eviction of M/s. Mahesh Metal Works which was inducted as a tenant under the letter/agreement to lease dated 7.4.1960 on the ground that the Company Court itself subsequently vide order dated 15.10.1982 held that Patni Bhawan- an appurtenant land the tenanted premises were the property of Maharaja Kishangarh Somyog Mills Co. Ltd. and not of the company in liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any-in-liquidation') through Official Liquidator in respect of the final Judgment Decree dated 5.2.1987 whereby the Company Court in company application No. 21/1980 under sections 446 and 477 of the Act of 1956 directed eviction of the tenant, one M/s. Mahesh Metal Works, Kishangarh District Ajmer from the premises let-out by the Official Liquidator of the Company-in-liquidation (hereinafter 'the Official Liquidator') on 7.4.1960. The facts of the case are that the Standard General Assurance Company Limited filed a winding petition No. 3/1956 under section 433 of the Act of 1956 on 7.10.1956 against the company Maharaja Mills Ltd. which was allowed on 7.10.1956. The Deputy Registrar of this Court was appointed as the Liquidator of the Company directed to be wound up. He then in his wisdom rented out a leased property of the company in liquidation i.e. Patni Bhawan to M/s. Mahesh Metal Works (hereinafter 'the tenant') under his letter/ agreement to lease dated 17.4.1960. As the premises rented out were not for a fixed period, in law the tenancy was month to month terminable by 15 days notice expiring with the month of the end of the tenancy. Clause 2 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving of possession of the tenanted premises to the decree-holder Official Liquidator who as landlord had in the first instance let-out Patni Bhawan and appurtenant land to M/s. Mahesh Metal Works. Mr. V.L. Mathur appearing for the applicant submitted that the impugned order dated 21.4.2014 is vitiated for reason of the Executing Court having decided by a common order, multiple objections filed by different objectors/ resistors against the final Judgment and Decree dated 5.2.1987 passed by the Company Court. Further, that the Court of Addl. District Judge did not have pecuniary jurisdiction to execute the judgment and decree dated 5.2.1987 passed by the Company Court. Counsel also submitted that the objectors/resistors had a legal right independent of the Judgment- debtor M/s. Mahesh Metal Works (hereinafter also main-tenant ) having been inducted as sub-tenants to various portions of Patni Bhawan in terms of Clause 2 of the letter/agreement to lease dated 7.4.1960 by the main tenant . As lawful sub-tenants within the meaning of section 13(i)(e) read with section 13(2) of the Rajasthan Premises (Control of Rent Eviction) Act, 1950 (hereinafter 'the Act of 1950') ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction of M/s. Mahesh Metal Works nor the Company Court, acting in excess of its jurisdiction, could have directed at his instance by its judgment and decree dated 5.2.1987 that the company-in-liquidation was entitled to put in possession of the said Patni Bhawan and appurtenant land. Mr. Gaurav Sharma, appearing for the Official Liquidator has submitted that the entire proceedings taken by the objectors/ resistors in their application under Order 21 Rule 97 CPC before the Executing Court were without any foundation, wholly frivolous and completely vexatious. It is submitted that albeit Order 21 Rules 97/101, 102 and 103 read with section 47 CPC has been broadly construed by the Courts to require the Executing Court to address all objections to the execution of a decree, yet unless a just cause is made out by the objectors/resistors, no indulgence is to be granted lest execution proceedings are unnecessarily prolonged and execution of a final decree obtained in accordance with law vindicating the rights of a decree-holder delayed without justifiable cause. He submitted that the Executing Court is to be alert to mischievous litigants who unfairly resort to the judicial processe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining, subsequent to the order dated 15.10.1982 passed in execution petition No. 7/1972 directing eviction of the main tenant M/s. Mahesh Metal Works, it was submitted that no such case was pleaded in the objections before the Executing Court, nor evidence thereon led, nor the point argued. Counsel submitted that, in any event, the aforesaid fact has no bearing on the controversy at hand, inasmuch as, one way or the other, the property in dispute was admittedly let out by the Official Liquidator to M/s. Mahesh Metal Works vide letter/agreement to lease dated 7.4.1960 and consequently the Official Liquidator was the landlord within the meaning of section 3(iii) of the Act of 1950. It was submitted that the application No. 21/1980 under sections 446 and 477 of the Act of 1956 at the instance of the Official Liquidator was therefore very well maintainable before the Company Court and nothing erroneous or wanting in jurisdiction can be attributed to the judgment and decree dated 5.2.1987 passed by the Company Court. Such a decree was hence executable in accordance with law as has been ordered to be in the impugned Judgment dated 21.4.2014 passed by the Executing Court. Counsel finall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he starting point of a just cause to my mind would be where an objector / resistor prima facie establishes even a modicum of a legal right to continue in possession of the immovable property in dispute either claiming through the Judgment-debtor or asserting an independent right to the property. Reverting to the facts of the pleas of resistors/objectors in the case at hand, it is apparent that the objectors set up their right to possession of the tenanted premises, directed to be otherwise vacated under the Judgment Decree dated 5.2.1987 on the basis of their purported induction as sub-tenants by the main-tenant M/s. Mahesh Metal Works under the letter/ agreement to lease dated 7.4.1960. However for this purpose the objectors/ resistors were not able to establish from a even shred of documentary evidence their induction as sub-tenants by M/s. Mahesh Metal Works. No writing in this regard evidencing the induction as sub-tenant was produced before the Executing Court. In S.B. Company Application No. 25/2014, Laxmi Narain Gupta v. Official Liquidator, reliance has been placed on Annex. 2-a purported writing by one Ashok Kumar Sharma recording his alleged status as a licencee of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The whole case of alleged sub-tenancy set up by the objectors was thus vague, wishy-washy and lacking in certainty otherwise essential for a valid contract of the alleged sub-tenancy purportedly created in their favour by the main-tenant. The Hon'ble Apex Court in M/s. Technicians Studio Private Ltd. v. Smt. Lila Ghosh [1977] 4 SCC 324 has held that the answer to the question whether a relationship of tenant and landlord exists between the parties is dependent upon the facts and circumstances gathered in a case. On that test, in the case at hand, in the absence of any iota of evidence to make out a tenant-landlord relationship between the main-tenant and the objectors/resistors, it has not been proved that they were the sub-tenants of the main-tenant M/s. Mahesh Metal Works and ever inducted in the suit property in that capacity. The sequitur is that the objectors/resistors had no modicum right to bring their case within the words just cause under Order 21 Rule 98(2) CPC and to resist the execution of the judgment and decree lawfully passed by a Company Court in company application No. 21/1980 under sections 446 and 477 of the Act of 1956 on 5th February 1987 directing ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y observing in the impugned judgment that since the respondents (petitioners before the High Court) were claiming through Papamiya and as they were not joined as party in the suit, the orders passed by the Court would in no way affect or bind them. The above observations, in our opinion, did not lay down the law correctly. In the context of the aforesaid enunciation of law by the Hon'ble Apex Court, it is quite apparent that even in the event of the objectors/resistors having proved their sub-tenancy created by the main tenant M/s. Mahesh Metal Works, the judgment Decree dated 5.2.1987 passed by the Company Court at the instance of the Official Liquidator against the tenant M/s. Mahesh Metal Works would be binding on them. That is however besides the point as in the case at hand, as detailed here in above no sub-tenancy created in favour of the objectors/resistors by M/s. Mahesh Metal Works was proved before the Executing Court. In my considered opinion in the facts of the case the objectors/resistors have no legal right to resist the Judgment Decree dated 5.2.1987. I also find no force in the contention of the counsel for the objectors/resistors that the Official Liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder sections 446 and 477 of the Act of 1956 and pass an order of ejectment of the tenant on 5.2.1987. There is also no force in the submission of counsel for the objection with regard to the Addl. District Judge purportedly lacking in pecuniary jurisdiction for execution of the Judgment Decree dated 5.2.1987. The Hon'ble Supreme Court has held in Mantoo Sarkar v. Oriental Insurance Co. Ltd. [2009] 2 SCC 244 has held that where the trial court has subject matter jurisdiction, its lack of pecuniary jurisdiction or even territorial jurisdiction, does not vitiate its judgment until prejudice is shown by the appellant. On this test of law, laid down by the Hon'ble Apex Court, the argument of the counsel for the objectors based on purported lack of pecuniary jurisdiction of the Executing Court in passing the order dated 21.4.2014 (when no prejudice has been pleaded, and argued) is liable to be rejected. So it is. In the circumstances obtaining, I find no error, legal or factual in the impugned order dated 21.4.2014 passed by the Executing Court. The conclusions of the Executing Court are based on an objective consideration and evaluation of the material evidence on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
