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TMI Blog2011 (9) TMI 1161X X X X Extracts X X X X X X X X Extracts X X X X ..... r till it hands over the same, to the official liquidator. The aforesaid order was passed in the context of the filing of letter for obtaining direction of the court for eviction of the appellant claiming to be a lessee of the property of the company (in liquidation) in Hydrabad, admittedly the said two shop rooms in question are part and parcel of the assets of the company, namely, Prudential Capital Marketing Ltd. (company in liquidation), 26 and 27 Amarda Mall Samigudda, Hydrabad (hereinafter referred to as the said property). 2. The short fact leading to preferring this appeal as projected by the appellant is as follows : In or about 1997 the said company (in liquidation) applied to the Reserve Bank of India (hereinafter in short the RBI ) for issuance of certificate of registration as non-banking financial company defined under section 45-I(f) of the Reserve Bank of India Act, 1934. In July 1997, the company gave an undertaking to the RBI that it would not alienate any of its assets without the prior approval of the RBI except for the purpose of return of deposit obligation. In September 29, 1997, the RBI prohibited the company from accepting any deposit from the public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities. The official liquidator however returned the demand draft of ₹ 29,594 being the amount of rent to the appellant. On February 11, 2005, the official liquidator asked the appellant through the learned lawyer to make over vacant possession of the property to him. The appellant on February 27, 2005, requested the official liquidator informing all the relevant facts, in support of its claim of tenancy to accept the rent. On May 13, 2005, letter was written by the official liquidator to the Assistant Registrar of Companies seeking direction upon the appellant to make over vacant possession of the said property to the official liquidator. 4. The learned trial judge after hearing the parties came to a conclusion amongst others that the document executed by the company (in liquidation) in favour of the appellant allowing to take possession is void, illegal and inoperative and as such it has no locus standi to remain in possession. 5. Mr. Pratap Chatterjee, learned senior counsel appearing for the appellant contends that the impugned order passed by the learned trial judge by which the direction for eviction, has been given without due process of law. His client is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The court cannot make out a new case while passing the impugned order and the learned trial judge has totally ignored such principle. He contends further that undertaking to the RBI has no legal effect. Violation of the undertaking given to the RBI cannot make a transaction void and as such creation of tenancy in alleged breach of undertaking given to the RBI could not be challenged nor avoided. 11. He urges that while passing the impugned order the learned trial judge failed to consider that in spite of undertaking given by the company on April 1, 1997, the RBI had passed orders against the company under section 45MB(2) of the Reserve Bank of India Act, 1934, on November 29, 1997 and thereafter on May 14, 1998, thereby it clearly shows that the RBI never relied on such undertaking as it fully knew that that such undertaking has no legal effect and as such the very basis of the judgment is absent. 12. Mr. P. C. Sen, learned senior advocate appearing for the official liquidator, the respondent, submits while supporting the judgment and order of the learned trial judge that the appellant's claim of tenancy by unregistered lease agreement dated November 23, 2001, is legall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986] 60 Comp Cas 746 (Bom), that transaction entered into after presentation of winding up petition is deemed to be void. The order of the learned trial judge in the facts and circumstances of this case does not call for interference. Hence the appeal should be dismissed with costs. 18. We have heard respective submissions of both learned counsels and we have read the papers before us. Considering the submissions made and examining the papers we find basically there are two issues involved in this appeal : (i) Whether the procedure adopted by the learned trial judge is in due process of law for passing an order of eviction or not ? (ii) Whether decision of the learned trial judge that letting out of the said properties of the company (in liquidation) is void under the provisions of the Companies Act, 1956, is correct or not ? 19. While addressing to the first issue we notice that the first point was never agitated before the learned trial judge and it is urged before us for the first time. Admittedly the letter was written by the official liquidator in the usual course of business to the Assistant Registrar of Companies for obtaining suitable direction from the hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... established with the judicial pronouncement and it would be found as appropriately urged by Mr. Sen, in the case of Vidhyadhar Upadhyay v. Sree Sree Madan Gopal Jew reported in [1990] 67 Comp Cas 394 (Cal), while examining the scope of sub-section (2) of the said Act, the Division Bench of this court at page 403 held as follows : In our opinion, the language of sub-section (2) is clear, it was the intention of learned judge that all questions which come within the scope of sub-section (2) of the said section should be dealt with by the company court in order to avoid unnecessary delay and multiplicity of proceedings. In an application being made to that effect, leave is given to the liquidator or appropriate party to institute or continue such proceedings in any other court or Tribunal. In this case, there was an application under section 446(2). It comes under clause (b) which relates to any claim made by or against the company and in any event it is certainly covered by clause (d) which includes any question whatsoever whether of law or fact which may relate to or arise in the course of the winding up of the company. 21. Then again at page 404 it is observed by their Lords ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the view that section 446 is a special provision with a summary procedure and it enables the company court through the official liquidator to take all legal measures so that the affairs of the company is not involved in multiplicity of judicial proceedings before different for a and further do not face possible conflicting decisions. Therefore, all that is necessary under the said section is to give an opportunity of being heard to the third party before any judicial step is taken by the court. 24. Under those circumstances we are unable to accept the contention of Mr. Chatterjee in relation to the first question that the procedure which was adopted by the learned trial judge is not in due process of law. 25. While adverting to the second question, we think findings of the learned trial judge that the creation of two leases by the company being void, is legally flawless. We endorse the reasons recorded by the learned trial judge. Admittedly the first lease was executed on November 24, 1998, when the prohibitory order of the Reserve Bank of India was not in force. But in July, 1997 the company then being not in liquidation, gave an undertaking to the Reserve Bank of India th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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