The main legal point established in the judgment is that failure to obtain permission prior to institution of the suit did not debar the court from granting leave subsequently. The court also considered the interest of the company in liquidation and the applicability of the rent legislation in reaching its decision.

The applicant has invoked the jurisdiction of this Court under Section 446 of the Companies Act, 1956 ("the Companies Act" for short), to seek leave to file and proceed with the suit in the Small Causes Court at Mumbai filed under Section 41 of the Presidency Small Causes Court Act, 1882 against the Official Liquidator and one another.

THE FACTS :

The factual matrix giving rise to the present application is as under.

2. The applicant herein is the owner of Flat No.12-A located in the building New Sagar Darshan, 81/83, Bhulabhai Desai Road, Mumbai - 400 026 ("the said premises" for short).

3. M/s. Poysha Industrial Company Limited ("the said Company" for short), was inducted on leave and licence basis on the terms and conditions set out in the agreement of leave and licence dated 17th June, 1975 executed between the applicant’s father Mr. B. P. Irani and the said Company. The licence although expired by afflux of time the said Company continued to occupy the suit premises and tendered licence fee which was accepted by the applicant’s father without prejudice to his rights.

4. The applicant’s father had filed an eviction suit being R. A. E. Suit No. 901/2695 of 1990 in the Small Causes Court at Mumbai against the said Company under the provisions of Section 13(1)(g) read with Section 13(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, ("the Bombay Rent Act" for short) on the ground of bonafide requirement of applicant’s father. During the pendency of the said suit, Mr. B. P. Irani, father of the applicant, died. His heirs and legal representatives brought themselves on the record of the said suit. The said suit has now been withdrawn on 12th July, 2004.

5. In the meanwhile, M/s. Poysha Industrial Company Limited was ordered to be wound up by order of this Court dated 9th January, 1998. The Company Application No. 731 of 1999 was made seeking return of the premises to the owner. The said Company Application was dismissed by the learned company Judge on 14th February, 2000. An appeal came to be filed against the said order, which was dismissed on 22nd August, 2000.

6. On 20th December, 2000 an application was made by the owner of the property under Section 446 of the Companies Act for leave to file eviction suit in the Small Causes Court at Mumbai, against the Official Liquidator and the sub-tenant one Mr. Tukaram Shridhar Bhat.

7. After hearing the parties, leave was granted by the learned Company Judge on 15th February, 2001. Consequently, the owner (landlord) filed suit being R.A.E. Suit No. 228/366 of 2001 before the Small Causes Court; wherein the Official Liquidator of the said Company and the sub-tenant were made party defendants. In the said suit the landlord had prayed for decree against the Company and occupant of the premises who failed to handover peaceful and vacant possession of the suit premises.

8. The present applicant made Company Application No. 45 of 2006 before the learned Company Judge under Section 446 of the Companies Act for leave to file eviction suit under Section 41 of the Presidency Small Causes Court Act against the Official Liquidator of the said Company in liquidation and the alleged sub-tenant (Mr. Tukaram Shridhar Bhat). The said Company Application came to be disposed of by the learned Company Judge (Mr. Vazifdar, J.) on 23rd February, 2006 by the following order: "2. Mr. Thakkar, the learned Senior Counsel appearing on behalf of Respondent No.2, states that in the event of the Petitioner making an application for amendment of the plaint in R.A.E. Suit No. 228/366 of 2001 on the basis of the averments made in the present Judges Summons, Respondent No.3 will not oppose the same. In view thereof, it is not necessary to grant the present Judges Summons. 3. Liberty to the Applicants to apply, if necessary. The amendment, if granted, will however, be subject to the rights and contentions of Respondent No.3 on merits."

9. The applicant did not file amendment applicat