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TMI Blog2022 (6) TMI 1493X X X X Extracts X X X X X X X X Extracts X X X X ..... referential claim made by such landlord? HELD THAT:- It is clear from Section 476 of the Companies Act, 1956 that the amount payable by the Company in liquidation as rental due to the landlord until the Official Liquidator takes possession is only a preferential claim. On the Official Liquidator stepping into the shoes of the tenant and the Official Liquidator continuing in possession, the amounts payable would be cost of winding up. Though the Applicant has claimed that from the date on which the Official Liquidator took possession, i.e., 15.07.2014, the Official Liquidator is required to make payment of the rentals as sought, it is opined that whenever an Official Liquidator is appointed and takes over possession, the Official Liquidator would have to be given atleast a period of three months to ascertain whether the Official Liquidator is required to continue in possession or not. This being so for the reason that as on the date on which the Official Liquidator takes possession he is not aware of the requirement or otherwise of the property or otherwise, the inventory of the properties of the Company in liquidation and whether any storage facilities are available to store the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrears of rents from 15.07.2014 to 31.12.2015 which amounts to Rs.13,43,238/- for the First floor premises. And pay future rents till handing over of possession of the premises. d. Pass such other Order as the nature and circumstances of the case may require. e. Cost of this application. 2. The Applicant claims to be the owner of the property which has been leased out to the Company in liquidation on 15.05.2008. As per the terms of the lease agreement, the Company in liquidation had deposited with the Applicant an interest free refundable security deposit of Rs.13,63,000/- and in terms of the lease agreement, certain amount was required to be paid as monthly lease rental for the schedule premises. 3. Though the lease period expired after a period of eleven months, the Company in liquidation did not hand over possession of the premises and continued to occupy the same. Subsequently, the Company in liquidation stopped payment of rentals and in the meanwhile, winding up proceedings being filed before this Court, this Court directed for winding up of the Company and appointed the Official Liquidator to take over the assets of the Company, which infact was taken over on 15.07.2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Official Liquidator taking possession of the premises belonging to a third party, which was in possession of the Company in liquidation, the Official Liquidator would be required to make payment of the rentals to such third party land owner or could the Official Liquidator contend that any claim of the landlord of the said premises would only be a preferential claim made by such landlord? 12. In the present case, there is no dispute as regards an agreement of lease entered into and the Company in liquidation being in occupation of the premises as also the quantum of lease rentals payable. The only issue as aforesaid is captured in the point for determination. 13. The Company in liquidation was in occupation of the both ground floor and first floor, later on the company in liquidation handed over the first floor to the landlord. 14. The building had one common entrance, which is also not in dispute. As per the Minutes, which have been recorded on 15.07.2014, when the Official Liquidator took over possession of the premises, it is clear that the landlord made a request not to lock the entire premises but keep the access of the first floor open so as to enable the landlord to rent ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d amount has to be treated as a preferential claim or cost of the winding up. 19. It is a common occurrence that whenever in a winding up proceeding, the Official Liquidator is appointed, many of the properties, which are required to be taken over by the Official Liquidator are tenanted premises, which have been leased out to the Company in liquidation. In such situations, the Official Liquidator on taking over of the possession would be in possession of the premises for the furtherance of the winding up proceedings and for no other reasons. The Official Liquidator in such situation would have two options, (i) to return the premises to the landlord at the earliest or (ii) to continue to be in occupation of the premises for various reasons which would include storage of movable property of the Company in liquidation, for storage of records, etc., of the Company in liquidation. 20. The Official Liquidator in such cases would step into the shoes of the Company in liquidation and occupy the role of a tenant in respect of the said premises. As stated above, the Official Liquidator would have had two options, to return the property to the landlord or to continue in occupation. In the eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reconstruction or of amalgamation with another company, all amounts due, in respect of contributions payable during the twelve months next before the relevant date, by the company as the employer of any persons, under the Employees' State Insurance Act, 1948 (34 of 1948 .) or any other law for the time being in force; (e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencement of the winding up, under such a contract with insurers as is mentioned in section 14 of the Workmen' s Compensation Act, 1923 , (8 of 1923 .) rights capable of being transferred to and vested in the workman, all amounts due in respect of any compensation or liability for compensation under the said Act in respect of the death or disablement of any employee of the company; (f) all sums due to any employee from a provident fund, a pension fund a gratuity fundor any other fund for the welfare of the employees, maintained by the company; and (g) the expenses of any investigation held in pursuance of section 235 or 237, in so far as they are payable by the company. 23. The payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dator; Next - the fees to be credited to Government under section 451(2); Next - the actual out of pocket expenses necessarily incurred by the members of the Committee of Inspection, and sanctioned by the Court. (2) Save as otherwise ordered by the Court, no payments in respect of bills of advocates, shall be allowed out of the assets of the company without proof that the same have been considered and allowed by the taxing officer of the Court. The Taxation Officer shall before passing the bills or charges of an advocate, satisfy himself that the appointment of an advocate to assist the liquidator in the performance of his duties has been duly sanctioned. (3) Nothing contained in this rule shall apply to or affect costs which, in the course of legal proceedings by or against the company which is being wound-up by the Court, are ordered by the Court in which such proceedings are pending, to be paid by the company or the liquidator, or the rights of the person to whom such costs are payable. 26. Thus, it is clear from the above provisions that the amount payable by the Company in liquidation as rental due to the landlord until the Official Liquidator takes possession is only a prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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