9911796707
TMI Blog2007 (9) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, as the owner of the premises, again served a notice dated 12th January, 2004 on the Company (in liquidation), inter alia, terminating their tenancy in respect of the premises under Section 106 of the Transfer of Property Act, requiring the Company (in liquidation) to give up vacant and peaceful possession of the premises to the appellant. The Company failed to comply with the notice. Therefore, the appellant again filed a civil suit being C.S. No. 1 of 2005 in this Court seeking a decree for eviction of the Company (in liquidation) from the said premises, mesne profits and other reliefs. The suit was decreed in terms of prayer 'A' of the Master Summons taken out on behalf of the appellant (plaintiff) dated 10th March, 2005. The Company (in liquidation) filed an appeal from the aforesaid order decree dated 13th September, 2005. The Appeal Court passed a conditional stay order dated 20th December, 2005 directing the Company (in liquidation) to pay at the rate of ₹ 20 per sq. ft. for an area of 7013 sq. ft. per month until the appeal was heard and disposed of. The payment was directed to be made from the date of the decree, i.e. October 2005. It was also direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on the second floor of premises No. 31, B.B.D. Bagh (South), Kolkata-700001 more-fully described in annexure A to the affidavit in support of the Judges Summons. (b) Injunction restraining the Official Liquidator from using or in any manner dealing with any portion of the said premises, other than handing over the said premises to the applicant, morefully described in annexure A . (c) Direction upon the Official Liquidator to pay ₹ 1,40,062/- per month on and from March, 2006 in terms of the order of the Hon'ble Appeal Court dated 20th December, 2005 till such time as the possession of the said premises is made over to the Applicant; (d) Direction upon the Official Liquidator to forthwith remove his padlock from the entrance of the said premises morefully described in annexure A and thereafter not to interfere with the applicant's possession, occupation and user thereof; (e) Ad interim order in terms of prayers above; (f) Such further and/or order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper. 4. On 15th May, 2006 the petition was directed to be listed marked as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not required by the Official Liquidator for the winding up of the Company (in liquidation). The Company (in liquidation) cannot be permitted to take advantage of its own wrong having a committed a default the Company (in liquidation) had become a rank trespasser in the tenanted premises. The entire situation is such that neither the appellant is being paid the occupation charges of the tenanted premises nor the possession is being made over to the appellant. The fact that the Company is in liquidation is a clear indicator of the fact that the Company is not in a position to pay the occupation charges. Therefore, by retaining the possession thereof the Company (in liquidation) would be burdened by an onerous obligation. In such circumstances, a direction is required to be issued to the Official Liquidator to disclaim the property in question. 9. In support of the submission the learned Counsel has relied on Judgment of the Supreme Court in the case of Ravindra Ishwardas Sethna and Anr. v. Official Liquidator, High Court, Bombay and Anr. and a Judgment in the case of Ashoka Steel Corporation Pvt. Ltd. (in Liquidation) Hariram Chamaria and Ors. v. The Official Liquidator, High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellants. Upon the winding up order being made, the Official Liquidator took possession of the aforesaid two shops. Subsequently, the Official Liquidator sought directions of the Company Court as to whether the premises should be let out on lease or licence or whether the furniture and fixtures in the premises should be sold. The Company Court directed that the premises be given on caretaker basis after obtaining proper document on compensation that was fixed by the Court. After following due procedure the Liquidator entered into an agreement with the second respondent and gave possession to the second respondent on terms and conditions set out in the agreement. The appellants being the landlords of the premises took out a Judge's summons praying for a direction to terminate the caretaker's agreement and to hand over the vacant and peaceful possession of the premises to the appellant. The Company Judge rejected the claim of the appellant. The Judgment of the learned single Judge was upheld by the Division Bench of the Bombay High Court. The landlords had approached the Supreme Court by way of special leave petition. 14. Interpreting the aforesaid provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as part of the routine business of the Company. Such is not the case here. In fact, as the business has come to a grinding halt, the office premises are of no use to the Liquidator. He has, therefore, devised a scheme by which he can knock out the compensation for the use and occupation of the premises, not necessary for the use of the Company, in contravention of the Rent Act and unfortunately the Court accorded sanction to this venture of the Liquidator disregarding the relevant provisions of the Companies Act. 15. These observations make it clear that if the Liquidator wants to exercise power under Section 457(1)(b), the business to be carried on must be with reference to the object clause in the Memorandum of Association of the Company. It was also observed that as the business had come to a grinding halt, the office premises are of no use to the Liquidator. Similar is the position in the present case. No business is being transacted by the Company for the past number of years. Therefore, the premises in dispute are of no use to the Liquidator. In fact, the learned Counsel appearing for the Official Liquidator has categorically stated that the Company is liable to pay the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; (c) any other property which is unsaleable or is not readily saleable, by reason of its binding the possessor thereof either to the performance of any onerous act or to the payment of any sum of money; or (d) unprofitable contracts;.... 18. A bare perusal of this section shows that it is intended to help the Company to get rid of burdensome assets, which are unproductive and are not necessary for the beneficial winding up of the Company. We are unable to accept the submissions of Mr. Chatterjee that the disclaimer application is not maintainable as there is no subsisting tenure of land upon the decree of the Civil Court having been passed. The term burdensome covenant would only relate to any land of any tenure held by the Company. Clauses (b) and (c) relate to other assets, in the form of stocks and shares and any other property. Under Clause (c) a disclaimer application would lie to get rid of any property possessed by the Company which is burdened with the performance of any onerous act or to the payment of any sum of money. To accept the submission of Mr. Chatterjee, would be to reconstruct Section 535 of the Companies Act by deleting Clauses (b), (c) and (d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial winding up of the Company (in liquidation). 19. We are also unable to agree with the finding of the learned single Judge that allowing the disclaimer application would result in nullifying the decree passed in favour of the appellant. The rights flowing to the appellant from the decree dated 10.3.05 in C.S. No. 1 of 2005, are wholly independent from the cause of action in the present proceedings. One proceeding can not be intermingled with the other. Even after the delivery of possession, pursuant to the order passed in this appeal, the appellant would be entitled to seek execution of the part of the decree which remains unsatisfied. Therefore, it cannot be said that the order allowing disclaimer would have the effect of nullifying the decree. In case the application for disclaimer is dismissed the decree would still be executable, in its entirety. The remedy under the Companies Act is wholly independent of the remedy that would be available to the appellant on the basis of the decree of the Civil Court. On the facts of that case in Ravindra Ishwardas Sethna's case (supra) at has been held that, the land of which the disclaimer was sought was subject to a 99 year lease a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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