The key legal principle established is that once the company was ordered to be wound up, the assets of the Company came in the custody of the Company Court, and no arrangement, after the winding up order, without permission of the Company Court could be recognized in respect of assets of the Company.

JUDGMENT :

Leave granted. These appeals have arisen from judgment dated 3rd August, 2012 passed by Division Bench of the Calcutta High Court in APO Nos. 248, 288 of 2011, 289 of 2011 and 303 of 2011 respectively.

2. The question for consideration is whether the Company Court could evict persons, who have occupied property of a company after commencement of winding up proceedings, on such company being revived under the order of the Company Court.

3. The appellant-company was directed to be wound up by order dated 9th November, 1998 in Company Petition No. 12 of 1998 filed by one of its creditors M/s. Indian Potash Limited. The Official Liquidator attached to the High Court of Calcutta was appointed as Official Liquidator. He could not take possessions of the factory premises of the company at 8, Pagladanga Road, Kolkata as one M/s. Hindustan Bone Mills was in possession claiming to be a tenant. During pendency of the proceedings, the premises of the company were occupied by five entities namely, Royal Blue Accessories, M/s. Magnate Industries, M/s. Narmada Equipments & Spares, M/s. Packtech and Premasish and Subhasish Chatterjee respectively.

4. The shareholders of the company filed an application before the Company Judge for recalling the winding up order. The said application was allowed on 6th September, 2010. It was observed that the amount due was paid to the creditors and there was no objection to the winding up order being recalled. The official liquidator was directed to hand over the possession which was with him vide order dated 20th September, 2010.

5. The Company preferred an appeal seeking direction that the Company Judge should have restored possession of entire premises of the company and not merely of that which was in possession of the official liquidator. Once the company was ordered to be wound up, the entire property of the company came in the custody of the Company Court under Section 456 of the Companies Act, 1956 and on winding up order being recalled, the company was entitled to restoration of its assets.

6. The Division Bench had before it the above appeal of the company claiming that it was entitled to be restored the possession of the entire property of the company and not merely the property in possession of the official liquidator and three appeals filed up occupants of the premises belonging to the company, claiming the right to continue in possession. The Company Judge found that though M/s. Hindustan Bone Mills, a partnership firm claimed that it was in possession of the part 5 of the premises prior to the Company being sent to liquidation, none of the occupants was in possession prior to commencement of winding up. They entered in possession after the winding up order.

7. The stand of the occupants was in two parts. One set of the occupants had given undertaking to vacate if directed by the Company Court but they submitted that their undertaking was conditional on permission to 15 participate in the sale and thus, the same could not be acted upon to require them to vacate. The other three occupants, respondents-herein submitted that they came in possession through M/s. Hindustan Bone Mills who was the tenant 20 of the Company and the official liquidator had accepted this position and could not go back upon this arrangement.

8. The High Court recorded its following finding with regard to the claim of two 25 occupants who had given undertaking to vacate the premises as and when so directed :

"In our considered view, both the occupants in view of their specific undertaking before the learned Judge 30 would be obliged to honour such undertaking as soon as Official Liquidator was divested of possession, no matter whether the company was in liquidation or not, no matter whether property was 35 Z sold or not. Their possession was coterminous with the Official Liquidator's possession that was clear from the said order. Permission to participate in the sale was superfluous. Any Indian citizen who 40 was legally