IMPORTANT POINT
Order II, r. 2, CPC vis-à-vis sections 433,434 and 439 Companies Act, 1956.

JUDGMENT

Altamas Kabir, J.

Leave granted.

2. An interesting point has been raised in this Appeal as to whether the provisions of Order 2 Rule 2 of the Code of Civil Procedure (CPC) would have any impact on a proceeding under Sections 433, 434 and 439 of the Companies Act, 1956.

3. This Appeal is directed against the judgment and order dated 14th August, 2006, passed by the Calcutta High Court in A.C. No.54 of 2005 dismissing the Appeal on the ground that in the absence of any specific finding whatsoever as to the rate of rent and the period of default committed by the respondent-tenant, the proceedings under the Companies Act, 1956, for winding-up was not maintainable.

4. The Appellant herein as landlord filed a suit for eviction against the respondent company on the ground of default in making payment of the rents and also on grounds of reasonable requirement, in the City Civil Court at Calcutta, under the provisions of the West Bengal Premises Tenancy Act, 1956. The same was registered as Ejectment Suit No.201 of 1999. The said suit was decreed only on the ground of default, but only upon recording that notice under Section 13(6) of the aforesaid Act had been duly served and that the ground of default had been proved, the Trial Court decreed the suit. There was no finding whatsoever as to the period of default in the said judgment.

5. After the passing of the decree, as the Respondent did not hand over vacant possession of the suit premises, the Appellant put the decree into execution and pursuant thereto vacant possession of Flat No.10-D in the 10th Floor and car parking space No.4 in the ground floor of the premises No.28-B, Shakespeare Sarani, Calcutta, was made over to the Appellant through Court Bailiff on 22nd February, 2002. Having obtained vacant possession of the suit premises, the Appellant issued notice to the Respondent Company demanding payment of arrears of rent, Corporation taxes, etc. but without yielding any result. Consequently, the Appellant had no other option, but to file a winding-up petition before the concerned Company Court for payment of arrears of rent amounting to Rs.7,22,381/- from the month of June, 1998, till August, 2004 at the rate of Rs.12,650/- per month, together with interest amount of Rs.8,92,211/- at the rate of 18% per annum. The learned Single Judge (Company Affairs) dismissed the winding-up petition on the ground of the alleged bar of Order 2 Rule 2 CPC as well as the observations made that the Appellant could approach any other appropriate forum with regard to the claim raised by him in the winding-up petition and that no summary order could be passed since the relationship between the parties had already been terminated.

6. The Division Bench dismissed the Appeal filed by the Appellant herein on the ground that the winding-up petition was not maintainable as there was no admitted arrears of rent for any particular period and there was no ascertained amount due in respect of which a winding-up order could be passed. The Appellate Court, however, also observed that the Appellant as the petitioning creditor would be entitled to claim the amount of arrears claimed by him in an appropriate proceeding before the appropriate forum.

7. Questioning the said order of the Division Bench dismissing the appeal, learned Advocate, Ms. Shobha, urged that both the learned Single Judge, as well as the Division Bench, proceeded on an erroneous interpretation of the provisions of Order 2 Rule 2 CPC and Sections 433, 434 and 439 of the Companies Act, 1956. Ms. Shobha contended that the eviction suit had been decreed only on the ground of default, since under the West Bengal Premises Tenancy Act, 1956, there is no provision for a decree for recovery of rents. In fact, in the absence of any provision in the Act, the Court could not have made any decree towards the rents payable by the Respondent-tenant to the Appellant-landlord. However, although, the default period or the rate of rent had not been comp