9911796707
TMI Blog2009 (9) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Judge s Summons, it has been stated by the applicant that the applicant has preferred Company Application No. 286 of 2005 before this Court for the appropriate relief to accept the offer of the applicant for Rs. 500/- per Sq. Mtr. of the land including the movables and immovable. To say in other words, the applicant is one of the offerers for the property in question who is desirous to purchase the property from the company in liquidation and has submitted the offer. Therefore, it is desirous to see that the properties of the company are sold by the sale committee or the Official Liquidator, as the case may be, at the earliest. 3. Company Application No. 370 of 2006 has been preferred by three persons viz. Mrs. Uttra Achyut Chinubhai, Aneesh Achyut Chinubhai and Mrs. Meera Kirtidev Chinubhai through their constituted power of attorney Achyut Chinubhai in capacity as the successor owner of the property seeking direction of this Court to Official Liquidator to handover the clear and vacant possession of the mill premises, which as per the applicant, is not required for efficiently carrying on winding up proceedings and it is also prayed that the Official Liquidator be directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very order this Court inter alia observed at para 3, 4, 5 and 6 as under: 3. This Court has passed an order on 12.8.2004 in Company Petition No.2 of 1998 and other cognate matters which inter alia includes Company Petition No.65 of 1998. By virtue of the said order the Company, namely, M/s. Nanikram Shobraj Mills was ordered to be wound up. Company Petition No.2 of 1998 was registered on the basis of the opinion forwarded by the BIFR for winding up of the Company. While disposing of the Company Petition No.65 of 1998 this Court has observed that since the Company Petition No.2 of 1998 is allowed and final winding up order is passed, the Company Petition Nos.65 of 1998, 210 of 1998 and 9 of 1998 are also deemed to have been allowed and winding up order is also deemed to have been passed in these petitions. It is true that the present applicants / original petitioners in Company Petition No.65 of 1998 have made several prayers. These prayers are as under :- (A) Be pleased to admit this petition; (B) Be pleased to pass order for winding up of the Nanikram Sobhraj Mills Ltd., and be further pleased to appoint the Official Liquidator attached to this Hon'ble Court be the Liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t / original petitioner to initiate separate proceeding for seeking other reliefs either by lodging claim before the Official Liquidator or by filing separate application before this Court. In any case it cannot be made the subject matter of review nor such relief can be granted in an application for review. 5. In above view of the matter, the Court is of the opinion that the relief which is sought for in the present application is out side the scope of the review as in the main petition also those prayers were neither considered nor granted. It is clear from the earlier order that by virtue of the winding up order passed in the main petition, no order was invited for other prayers. The applicants can therefore move separate application for these reliefs. 6. Subject to the aforesaid clarification and observation this application is accordingly disposed of. 7. The relevant aspect is that prior to preferring of the Company Application No. 249 of 2006, the applicant of Company Application No. 370 of 2006 (for the sake of convenience the applicant therein shall be referred to as the alleged owner/owner of the property) has preferred Company Application No.148 of 2006 in Company Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 years. It further appears by supplementary agreement of lease dated 15.12.1939 that the additional area was also given on lease and the additional monthly rent was fixed. (3) The period of lease has expired in any case on 15.12.1949. (4) In the statement of affairs filed before the Official Liquidator the present property is not shown as that of the company in liquidation. 11. In view of the aforesaid, it can be said that the company in liquidation has continued to occupy the property after the expiry of the period of lease agreement. Mr. Pandya, learned counsel appearing for the applicant during the curse of the hearing wanted to rely upon the document dated 20.10.1942 entered into between the company in liquidation and the Managing Trustee of the owner Shri Chinubhai Madhavlal and others Trust for contending that thereafter the tenancy was renewed at the rate of Rs.770/- per month + Rs. 20/- as the water charges on month to month basis from 1st November, 1942 to 31st August, 1943 and it was contended that for some time such month to month tenancy continued and there was arrears of rent from October, 1990 and the company had closed down its business since 1995. Thereafter the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ready and willing to pay the amount of standard rent or permitted increase and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. Therefore, a statutory tenant would be entitled to continue to occupy the property so long as is ready and willing to pay the rent and permitted increase and complies with the other conditions consistent with the provisions of the Act. Therefore, if the company in liquidation may be through Official Liquidator, if desirous to continue the occupation over the property, it can, but the requirement would be to pay the amount of rent and the permitted increase and to observe the other terms of the tenancy consistent with the provisions of the Act. Hence, the Official Liquidator, if desirous to continue the occupation of the property, he will have to abide by the conditions for payment of the rent. In the event the rent is not paid, the claim of arrears of the rent can also be lodged by the landlord before the Official Liquidator and Official Liquidator shall be required to pay the claim of the rent to the owner. 16. So far as the rights of the landlord against the statutory tenant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the claim of landlord for possession of the premises, if otherwise entitled to dehors the provisions of the Rent Act. A tenant needs no protection against eviction by the landlord so long as he has necessary protection under the terms of the contract entered into with the landlord. A tenant's right to hold over after the termination of the contractual tenancy is different from the right to protection during the contractual tenancy and the two rights must be kept distinct from each other. In case of the former right provisions of the Rent Act come into play, while in case of the later right, ordinary law governing the rights of the tenant and landlord would become applicable. 23. It is settled law that the period of a subsisting lease cannot be curtailed in absence of a forfeiture clause in the lease deed. The contractual tenancy would thus subsist as governed by provisions of the T.P. Act and there cannot be any eviction from such tenancy. 24. At a given point of time a view prevailed that the statutory tenancy was a personal right to remain in occupation after the contractual tenancy had been determined and there was no right to property but the position today is clear and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy of the lease only on a ground as may be enumerated in sub-sec. (1) of Sec.13 of the Bombay Rent Act provided it is also enumerated as one of the grounds for forfeiture of the lease rights in the lease-deed, but not otherwise. (iv) The period of fixed term lease of 199 years is ensured and remains protected except in the cases indicated in (iii) hereinabove, and during this period, the rights of the lessee under the lease-deed and the Transfer of Property Act are not curtailed by the provisions of the Bombay Rent Act. 19. The aforesaid goes to show that as the period of lease in the present case has admittedly expired and the occupation is continued by the company in liquidation thereafter which can be termed as that of by way of a statutory tenant, the rights of the company in liquidation as well as the rights of the owner shall stand governed by the provisions of the Rent Act and the agreement in terms of the lease deed which has expired by afflux of time would be of no importance. 20. The aforesaid discussion leads me to record the conclusion that the company in liquidation if desirous to continue to occupy the property would be entitled to occupy the property so long as it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 read as under: Notifications u/s 15(1) Proviso Premitted Transfers No.GHJ-222/BRA-1067-A dated 28th April, 1969 In exercise of the powers conferred by the proviso to Section 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (Bom. LVII of 1947), the Government of Gujarat, hereby permits in all the Saurashtra and Kutch areas of the State to which Part II of the said Act extends, all transfers and assignments by lessees of their interests in leasehold premises as and to the extent specified in the schedule annexed hereto. Schedule 1. Transfer or assignment on (i) or (ii) sale or (iii) mortgage without possession, by lessees holding building sites under leases the unexpired period of which exceeds 5 years on 31st December, 1963 provided such transfer is of the entire interest of the lessee in the building site together with the whole building standing thereon. 2. Transfer or assignment incidental to the sale of a business as a going concern together with the stock-in-trade and the goodwill thereof, provided that the transfer or assignment is of the entire interest of the transferor or assignor in such leasehold premises together with the business and the sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) transfer or assignment by such Financial Corporation or Stae Govt, as the case may be, of said premises transferred or assigned to it. Explanation:- For the purpose of this notification, the expression industrial concern shall have the same meaning as assigned to it in the said Act. 25. The aforesaid shows that if the transfer is on account of the sale of the business as on going concern, such is permitted. In the present case as the company is closed since 1995 and has discontinued its business activities, the question of transferring the business would not arise. It is an admitted position that the Official Liquidator is holding the property in the process of winding up since the company is already wound up. Had it been a case for taking over of the company which is being wound up by another company by way of amalgamation or otherwise or had it been a case where the company is to be revived by continuing its operation may be by itself or through the other company which is to take over, it may stand on different footing. But, in a case where Official Liquidator has only to liquidate the assets of the company for distribution amongst the various classes of creditors, such woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of the lease agreement no additional construction was permitted and he also stated at the bar that at one point of time when the company wanted to make construction, the suit was filed and injunction was granted by the Court and, therefore, he submitted that the constructions were all in existence as per the applicant. He also stated that if the OL is desirous to sell the superstructure over the land and appropriate the money for winding up of the company in liquidation the applicant has no objection for such purpose, provided the OL thereafter surrenders the vacant land to the applicant. He also submitted that as per the conditions of the lease deed, there is liability on the part of the company in liquidation to pay all taxes, including the arrears of rent with permitted increases. However, he stated under the instructions of his client and declared before the Court that if direction is given by this Court to surrender the land by the OL after realisation of the price of the scrape and of the super-structure over the land, the applicant is ready to forgo the arrears of the rent and also the claim for outstanding taxes and the applicant after receipt of the vacant poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no salable interest in the property of the company in liquidation and the OL after sale of the super-structure would not require further retention of the property, since huge expenses are likely to be incurred for preservation of the property. 29. The learned Counsel for the applicant in support of the claim of ownership had relied upon the decision of this Court in the case of Minor Anish Achyut Chinubhai v. M/s. Nanikram Sobhraj Mills Pvt. Ltd., reported in 1992(2) GLR, 1133 and it was contended that in the said suit, at that time also, the company did not challenge the title of the owner Minor Anish Achyut Chinubhai and Others and it was further contended that if the title is challenged by the tenant, the protection also may not be available under the Rent Act. It was submitted that in the affidavit dated 13th October, 2006, the applicant has shown how the present property is inherited by Achyut Chinubhai and others and together with the same, the relevant entry in the revenue record is also produced for such purpose. 30. It does appear that there was litigation before this Court in the case of Minor Anish Achyut Chinubhai (Supra), but it also appears that the question of title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; basis, by getting valuation fixed by convening the meeting of the Sale Committee already constituted for the company in liquidation. The process of convening the meeting, advertisement and inviting offer and finalization of the offer shall be completed preferably within a period of three months from the date of receipt of the order of this Court. The report shall be submitted to this Court for confirmation of the sale within two weeks from the finalization of the proceedings by the Sale Committee. The question of finalization of the sale shall preferably be concluded within four weeks from the date of the submission of the report and the conditions shall be incorporated at the time of sale confirmation to remove the super-structure shall be preferably within a period of three months from the date of finalization of the sale. (b) OL, after convening of the meeting within a period of four weeks, shall also issue an advertisement in the newspaper namely; Gujarat Samachar (Gujarati daily) (Ahmedabad Edition) with the details of the property, stating that the claim of ownership is made over the property by the applicant and as per the directions of the Gujarat High Court, property ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
