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TMI Blog2019 (4) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... icant. The order is extracted below. "The Official Liquidator seeks the assistance of this Court to take possession of the subject property in Worli, Mumbai. This letter for direction (CA no.182 of 2017) is allowed in terms of prayers (a), (b) and (c). The choice of an empanelled valuer is left to the Official Liquidator. He is permitted to break open the seal or lock of the flat in the presence of and with the assistance of the local police in Mumbai. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities." The order was made on a letter for direction filed by Official Liquidator, registered and numbered as CA 182 of 2017 per a practice direction issued by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier order dated 4th February, 2005 and was dealt with by order dated 1st August, 2008. The application was dismissed. Now, applicant has again come up on contention of having obtained membership of the cooperative. Mr. Chowdhury, learned advocate appears on behalf of Official Liquidator and points out, applicant had preferred appeal against order dated 1st August, 2008 but the appeal was dismissed for non-prosecution on 28th April, 2014. On further query from Court Mr. Garai submits, statements have been made in the affidavit in support of the Judge's Summons that at about 3:30 p.m. on 1st June, 2017, representatives of Official Liquidator along with police from Worli Police Station visited the flat in question and demanded possession. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons aforesaid, Court is distressed and constrained to hold that where applicant had given possession, he, in consequence, does not have entitlement, as prayed for in the application, to have order for restoration of possession. Distressed and constrained because Companies Act, 1956, under sections 456, 457 and 477 provide for custody of property of company in liquidation, powers of liquidator in respect of property of company in liquidation and Court's power to summon persons suspected of having property of the company in liquidation, which provisions were not invoked nor applied in Official Liquidator taking possession of the flat pursuant to approaching coordinate Bench on a 'letter for direction', to obtain exparte permission to break ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession." (emphasis supplied) There was no adjudication, as appears from exparte order dated 5th May, 2017, it not being an order passed in execution proceeding. It cannot also be said there was adjudication of applicant's claim to possession as by order dated 1st August, 2008. That was order made dismissing application of recall of earlier order. Adjudication was the application did not merit order of recall as necessarily that grounds for recall or review had not been made out. In this context following extract from said order, on submission made and a view taken, are relevant. "Mr. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with leave obtained under section 446, was not resorted to by Official Liquidator. There was no dispute raised by Mr. Chowdhury regarding manner in which Official Liquidator obtained possession of the flat except submission that notices issued prior thereto by the office, addressed to applicant at his address of the flat, went unserved. As such the application for, inter alia, recall of order dated 5th May, 2017 is allowed in part as the order was obtained exparte and there appears error of fact apparent on face of it, the flat being occupied and not locked. However, as aforesaid, applicant having had thereafter relinquished possession, other prayers in the application cannot be granted. CA 286 of 2017 is thus allowed in part. Company Mat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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