9911796707
TMI Blog1993 (3) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation of the company, the Official Liquidator took possession of the assets of the company on November 18, 1991. The Official Liquidator also took possession of the said guest house and put the same under lock and key. The landlord, the respondent No. 2 in this appeal, made an application under S. 535 of the Companies Act, 1956 (hereinafter referred to as the Act), for a direction upon the Official Liquidator to disclaim the tenancy of the company in his favour. The appellant also had filed a separate application under S. 535(6) of the Act for vesting the tenancy of the company in the appellant. The appellant took out a Judge's Summons before the Court of first instance on January, 25, 1992 claiming, inter alia, (a) leave be granted to the Official Liquidator to disclaim the guest house being premises No.C-22, (Old No.C-71), Maharani Bag, New Delhi, more fully mentioned in the Agreement dated 29th July, 1970, being Annexure-A, and vest the same in favour of the applicant-company as a sub-tenant thereof, subject to and upon the same liabilities and obligations as embodied in the said Agreement dated 29th July, 1990: and (b) direction be given to the Official Liquidator to han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such terms as the Court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance of assessment for the purpose: Provided that, where the property disclaimed is of a leasehold nature, the Court shall not make vesting order in favour of any person claiming under the company, whether as under-lessee or as mortgagee or holder of a charge by way of demise, except upon the terms of making that person- (a) subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding-up or (b) if the Court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date; and in either event if the case so requires as if the lease had comprised only the property comprised in the vesting order; and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting. Therefore, the requirement of prior written consent is satisfied when the subletting is in favour of the subsidiary of the lessee, that is, Shalimar Ropeworks. 10. The learned counsel for the appellant has referred to a decision of Supreme Court reported in [1965]3SCR829 , South Asia Industries Private Ltd. v. Sarup Singh. In this case there are three separate judgments. Mr. Justice Sarkar (as he then was) interpreting S. 14 of the Delhi Rent Control Act observed as follows: I am also inclined to the view that the consent contemplated by S. 14(1), Proviso (b) is a direct consent to a contemplated assignment to a particular assignee. See Regional Properties Ltd. v. Frankenschwerth (1951) 1 All ER 178. Clearly the clause in the case relied upon could not he a consent of this kind. This point, therefore, also fails. 11. Mr. Justice Bachawat (as he then was) delivering a concurrent judgment also observed as follows:-- The consent in writing within the meaning of paragraph (b) of the proviso to S. 14(1) may be either general or special, but no such consent was given by Cl. (7). The effect of Cl. (7) is that the assignee of the lease enjoys the benefits and is subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J. (as he then was) in South Asia Industries Pvt. Ltd. (supra) and accepting such view the Supreme Court in this case observed that the permission must have been in writing and specific in the words of Justice Sarkar in South Asia Industries Pvt. Ltd. [1965]3SCR829 . The respondent landlord has also referred to another Supreme Court decision reported in [1989]3SCR632 , Shantilal Rampuria v. V. Vega Trading Corporation, in support of this proposition. There the Supreme Court observed as follows (at page 1822):-- We are, therefore, of the view that previous consent in writing of the landlord with respect to each subletting separately is essential and a general authority to the tenant in this regard will not be sufficient in law. 14. It will thus appear that there must be a prior consent in writing and that consent should be referable to a specific sub-letting in respect of the specific premises. The learned trial Judge found that the appellant failed to establish its case of alleged sub-tenancy and there is nothing on record to show that there has been any prior written consent given by the landlord and also in respect of this specific sub-letting in respect of the said guest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the finding of the learned trial Judge. 16. It also appears that the appellant has disclosed certain documents as to the payment of water charges, telephone charges and also rent receipts. The learned Judge carefully scrutinised those disclosure but the learned Judge found that the appellant by such documents had not been able to show that it was the appellant who made those payments directly to the landlord in respect of the said guest house. We have also looked into those documents as incorporated in the paper-book and from that we have not been able to find out that those payments were made by the appellant. All the rent receipts were issued in the name of the erstwhile company. In any event even by those documents the appellant is able to show that the appellant had been making those payment in respect of the guest house as also the rent, that would not by itself establish the sub-tenancy in favour of the appellant. We have already indicated above that it is a specific requirement of the Act as also of the said Cl. (6) of the said Indenture of lease that sub-letting has to be made with specific prior written consent in respect of the specific sub-letting. We have discu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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