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TMI Blog2025 (3) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... by the landlord, seeking possession of the premises, could not be dismissed because, by approaching the Company Court, the landlord had invoked an independent and special remedy available to the landlord under the Companies Act. There is substance in the contention raised on behalf of the applicant that under Section 446 of the Companies Act, this Court has wide powers, with the focus being on examining issues and passing orders with the object of carrying on the winding up proceeding and in that process, examining whether the premises are required for the purposes of winding up of the company in liquidation. In the case of Metal Tubes and Rolling Mills v/s. Official Liquidator [2020 (8) TMI 584 - BOMBAY HIGH COURT], after referring to a number of judgments of the Supreme Court in this context, it was held that the Company Court under Section 446 of the Companies Act, has very wide powers to decide all questions that may relate to or arise in the course of winding up of the company. This Court is unable to agree with the learned counsel for the official liquidator that the present application ought not to be entertained, as the landlord can institute eviction proceedings. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicants. 2. Before adverting to the rival submissions in the present application, the facts in brief leading up to filing of the present application are required to be appreciated. 3. In the year 2015, Company Petition No. 369 of 2015 was filed by M/s. Alliance Logistics against Surendra Engineering Corporation Ltd. (the company in liquidation). By order dated 5th May 2016, the company petition was admitted and it was directed to be advertised. On 16th February 2018, this Court ordered winding up of the company and appointed official liquidator of this court as the liquidator of the company with direction to immediately take charge of all the assets, books and accounts etc. of the company in liquidation. On 20th March 2019, the present application was filed by the applicants being owners/landlords of the premises in question i.e. Flat Nos. 4 and 5 in Jaitirath Mansion, Barrack Road, Mumbai. During the pendency of the instant Company Application No.332 of 2019, an interlocutory application was filed by the applicants for permission to carry out repairs of the said two premises. On 21st September 2022, this Court permitted the official liquidator and officers of the Maharashtra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the applicants further relied upon the judgment of the Supreme Court in the case of Shree Chamundi Mopeds Ltd. v/s. Church of South India Trust Association, CSI Cinod Secretariat, Madras, (1992) 3 SCC 1, to contend that the observations made therein, support the case of the applicants that they are indeed entitled to invoke powers of this Court under Section 446 of the Companies Act, to seek possession of the said premises from the official liquidator. 7. The learned counsel for the applicants further placed reliance on judgments of the Delhi High Court in the case of Satinder Pal Singh & Anr. v/s. Joginder Sethi & Ors., ILR (2005) II Delhi 302 and in case of In Re: Bharat Steel Tubes Pvt. Ltd., 2005 SCC OnLine Del 452, as also judgment of the Punjab and Haryana High Court in the case of Smt. Kaushalya Aggarwal v/s. Punwire Paging Services Ltd. (in liquidation), 2004 SCC OnLine P&H 179, to contend that where a specific case is made out by the landlords in their favour, the Company Court cannot sit as a mere spectator even if the official liquidator claims that the premises are required for the process of liquidation. It was submitted that as per the observations made in the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Mills Co. Ltd. & ors., (1992) 2 SCC 322 and judgments of this Court in the cases of Vaz Forwarding Limited v/s. State Bank of India & Ors., 1994 SCC OnLine Bom 3, The Provident Investment Company Ltd. v/s. M/s. Mukund Limited & Anr. (judgment and order dated 23rd June 2017 passed in Company Application (Lodging) No. 634 of 2016), The Provident Investment Company Ltd v/s. Mukund Limited & Anr. (Division Bench order dated 27th June 2022 passed in Appeal No. 312 of 2017) and the judgment in the case of Reserve Bank of India v/s. L. M. Devare, Liquidator, 2001 SCC OnLine Bom 280. By referring to the said judgments, the learned counsel appearing for the official liquidator submitted that the applicants could seek eviction by instituting appropriate proceedings under rent laws and approaching this Court under Section 446 of the Companies Act, is not justified. In any case, it was submitted that the official liquidator, having made the position very clear about the need of the premises for the process of winding up of the company, there was no question of the application being allowed. It was emphasized that the Supreme Court in the case of Nirmala R. Bafna v/s. Khandesh Spinning and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has wide powers, with the focus being on examining issues and passing orders with the object of carrying on the winding up proceeding and in that process, examining whether the premises are required for the purposes of winding up of the company in liquidation. In the case of Metal Tubes and Rolling Mills v/s. Official Liquidator (supra), after referring to a number of judgments of the Supreme Court in this context, it was held that the Company Court under Section 446 of the Companies Act, has very wide powers to decide all questions that may relate to or arise in the course of winding up of the company. 14. In the light of the said position of law, this Court is unable to agree with the learned counsel for the official liquidator that the present application ought not to be entertained, as the landlord can institute eviction proceedings. 15. It is relevant to note that reliance placed on behalf of the official liquidator on judgments and orders of this Court in the cases of Vaz Forwarding Limited v/s. State Bank of India & Ors. (supra), The Provident Investment Company Ltd. v/s. M/s. Mukund Limited & Anr. (learned Single Judge and Division Bench) (supra) and Reserve Bank of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al liquidator insisting upon a sub-tenant to vacate the premises, in a situation where the landlord had consented to such sub-tenancy. In the said case, the landlord trust had also moved an application in the company petition for a direction to the official liquidator to surrender possession of a small portion, which was other than the remaining larger portion in possession of the subtenant. This was a mere 150 sq. ft. out of total area of the flat of 3500 sq. ft. In the context of this small area, the official liquidator had claimed that the same was required for storing records and it was in such a situation that the Supreme Court observed that the official liquidator could not be forced to store records and books in its office or anywhere else. In the said factual position, the reason stated by the official liquidator for continuing in possession of the small area of 150 sq. ft. was found to be a relevant reason. The facts in the present case are distinguishable and in any case, the said judgment of the Supreme Court does not indicate that the reasons put forth by the official liquidator cannot be analysed and gone into by the Court while deciding such an application. 19. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in possession of four flats of the applicants. Flat nos. 4 and 5, which are subject matter of this application, are admeasuring 1170 sq. ft. and 687 sq. ft., respectively. The official liquidator is also in possession of Flat nos. 1 and 2 of the applicants admeasuring 1050 sq. ft. and 2150 sq. ft., respectively. The official liquidator has not made the effort of explaining why flats of the applicants in possession of the official liquidator are required for storing the books and record or how much of the area is reasonably required for the said purpose. It is also an admitted position that after this Court passed specific orders, the official liquidator took physical possession of the said four flats on 19th May 2023. Till date, the official liquidator made no effort to keep the records and books of the company in liquidation in any of the aforesaid flats, if at all. 22. There is substance in the contention raised on behalf of the applicants that in Official Liquidator's Report No. 77 of 2022, the official liquidator has specifically stated that a search of flat Nos. 4 and 5 revealed that there were no books of accounts or records belonging to the company in liquidation. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this Court has not made any comment on the entitlement of the applicants for possession of flat Nos. 1 and 2, as the said two flats are not subject matter of the present application. In that regard, the applicants would be at liberty to raise their claims in accordance with law. As regards prayer clauses (b) and (c) of the present application, liberty is reserved for the applicants to raise their claims in an appropriate manner in the liquidation process. This Court has also not considered the contention raised on behalf of the applicants with regard to Section 60 (k) (c) of the CPC, as the a dispute was raised on behalf of the official liquidator as to whether the premises in question are residential or commercial. 27. In view of the above, the instant application is allowed in terms of prayer clause (a), which reads as follows : "(a) That this Hon'ble Court be pleased to direct the Official Liquidator to handover quiet vacant, and peaceful possession of Flat No.4 admeasuring 109.66 sq. mtrs. (carpet area) and Flat No. 5 admeasuring 63.80 sq. mtrs. (carpet area) to the Applicants, both in the building known as Jaitirath Mansion, situate at 6-A, Barrack Road, Behind Metro Ino ..... X X X X Extracts X X X X X X X X Extracts X X X X
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