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High Court Of Calcutta
TARUN CHATTERJEE, SUBHRO KAMAL MUKHERJEE
GOPAL KRISHNA DAW - Appellant
Versus
OFFICIAL LIQUIDATOR - Respondent
A. P. O. 349 Of 1998
Decided On : 04/03/2001
LEASE - RENEWAL - POSSESSION - WEST BENGAL NON-AGRICULTURAL TENANCY ACT, 1949 - APPLICABILITY - COMPANY - WINDING UP - OFFICIAL LIQUIDATOR - JURISDICTION - COMPANIES ACT, 1956 - SECTION 446 (2).
Fact of the Case:
A lease was executed in 1959 for a period of 25 years, with a provision for renewal for another 25 years on mutually agreed terms. The lessee assigned the leasehold interest to a company, which went into liquidation in 1977. The residue period of the lease was sold in auction in 1980 in favor of the respondents. The lease expired in 1984, and no renewal was agreed upon. The owners filed an application under Section 446 (2) of the Companies Act, 1956, seeking restoration of possession of the premises.
Finding of the Court:
The Court held that the Official Liquidator was deemed to be in possession of the premises, as it was an asset of the company. The assignees, who purchased the residue of the term of the lease, were not entitled to resist the claim of the owners for restoration of possession, as they had not initiated any proceedings to assert their alleged right of renewal of the lease. The Court also held that the West Bengal Non-Agricultural Tenancy Act, 1949, was not applicable in the facts and circumstances of the case.
Issues: 1. Whether the relief prayed for in the application under Section 446 (2) could be granted or not? 2. Is the application barred by limitation? 3. Whether the relief claimed by the owners are barred by the provisions of West Bengal Non-Agricultural Tenancy Act, 1949?
Ratio Decidendi: 1. The Court held that the Official Liquidator was deemed to be in possession of the premises, as it was an asset of the company. The assignees, who purchased the residue of the term of the lease, were not entitled to resist the claim of the owners for restoration of possession, as they had not initiated any proceedings to assert their alleged right of renewal of the lease. 2. The Court held that the application was not barred by limitation, as the owners had filed it immediately after the expiry of the lease. 3. The Court held that the West Bengal Non-Agricultural Tenancy Act, 1949, was not applicable in the facts and circumstances of the case, as the assignees had approached the landlords for renewal of the lease and thereby accepted their title.
Final Decision: The Court allowed the appeal and directed the Official Liquidator to hand over possession of the demised premises to the owners within three months.
( 1 ) THIS appeal is directed against the order dated 5-5-1998 passed by a learned single Judge of this Court inter alia, rejecting an application for an order directing restoration of possession of the disputed premises to the appellants herein.
( 2 ) THE facts leading to the case may be summarised as under : on or about 31-10-1959 a deed of lease was executed by the Daws in favour of one Haradhan Dutta, who was carrying on business under the name and style of A. Coomer and Company. The demised premises was about 16 cottahs, 10 chittacks and 35 square feet of land being a portion of premises No. 242, Jessore Road of South Dum Dum Municipality and presently recorded as premises Nos. 84, 85 and 86, Sarat Chatterjee Road. The lease was for a period of 25 years with effect from Nov. , 1959 and ending with Oct. , 1984. The important Clauses of the said lease are as under:--" (a ). . . Lessee's covenant :4. They will use the demised premises for running factory and/or their office purpose only and not for any other purpose and for this purpose they will be at liberty to erect or build necessary structures on the demised premises according to building rules, factory rules and all other law of land. 7. They will at the expiration or sooner determination of the said lease peaceably and quitely surrender the demised premises in the same condition is now, together with all such erections or building and or all such fixtures there or as may be thereon, provided the Lessors be agreeable to pay proper valuation of the same at then market price but the lessee shall remove all their machineries and plants to be fitted there. 8. If the Lessors be not agreeable to take over all such erections building and all such fixtures or in case the Lessors be not agreeable to pay proper price for the same it shall be lawful for the Lessees to remove the same within the period of the lease but not later after the expiration and determination of the said terms. 10. The Lessee shall not assign or otherwise mortgage the said leasehold interest or any construction, if any erected thereon or any part thereof without permission in writing of the Lessors. Except in the case of a Private Limited Company in which the Lessee shall remain a share holder and/or a Director such consent shall not unreasonably be withheld and even in all such cases the liability of the Lessees will remain to the Lessors in respect of all the covenants herein contained. 11. In case of the insolvency of the lessee herein and/or any attachment of the structures or leasehold by any decree of Court the lease herein shall be deemed to be determined. (b) Lessors' covenant:2. The Lessors will at the request and cost of the Lessee at the end of the terms of lease hereby granted execute a renewal of the lease for another terms of 25 years on the terms and conditions and rent to be mutually settled by the parties at the then prevailing market rate and the salami or premium, fixed therefor. The said new terms covenants and conditions are to be mutually settled before the expiry of the lease for 25 years. "
( 3 ) THAT the leasehold interest with the building and structures standing thereon were assigned by the said Haradhan Dutta to A. Coomer and Company (P.) Ltd. sometime in 1960 in which the said Haradhan Dutta was a shareholder and director.
( 4 ) THE Daws received a letter from the Official Liquidator, High Court, Calcutta dated 15-7-1980 intimating that the said A. Coomer and Co. (P.) Ltd. went into liquidation with effect from 20-6-1977 and by an order passed by the Hon'ble Justice Salil Kumar Roy Choudhary dated 4-7-1980, the leasehold interest in the said land will be sold in Court on 25-7-1980.
( 5 ) ON receipt of the aforesaid letter the Daws moved the appeal Court on 24-7-1980 for a direction to stop the sale fixed on 25-7- 1980, but the appeal Court did not pass any order and observed that Daws might take appropriate proceedings in the trial Court if so advised.
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