The Official Liquidator has the power to disclaim the leasehold interest of a company in liquidation under section 535 of the Companies Act, even if he has not taken possession of the property, if the leasehold interest is not needed for efficiently carrying on winding-up proceedings and there is no saleable interest.

MAHEMMAD HABEEB SHAMS ANSARI, J.

( 1 ) THE Court: The instant matter has been assigned to this Court by the order dated August 5, 2003 of His Lordship the Chief Justice.

( 2 ) JUDGE's Summons have been taken out for leave to the applicants to make the application and for condonation of delay in making the application. The relief, prayed for is for an order directing the respondent-Official Liquidator to disclaim and/or give possession of the flat, more fully stated in the lease agreement dated May 24, 1985 being annexure 'a' to the affidavit filed in support of the Judge's Summons.

( 3 ) BRIEF facts based upon which the above reliefs have been prayed for are that the applicants are the owners and landlord of the flat which was given on lease to Remington Rand of India Limited (in liquidation) reliance for which purpose has been placed upon annexures 'a' and 'b'. The applicants through their advocate by a letter dated January 31, 2003 served a notice upon the Official Liquidator requesting him to disclaim the said flat. In reply Official Liquidator by his letter dated February 26, 2003 informed the applicants' advocate that in terms of the order of Court dated November 26, 2001 the Official Liquidator has been discharged from any liability in respect of taking any possession of the assets of the company (in liquidation) hence question of disclaimer of the said property by the Official Liquidator does not arise.

( 4 ) IT is the case of the applicants that they came to know on or about November 28, 2002 that the company has gone in liquidation and upon further enquiries made by their learned advocate it was learnt that the company went into liquidation by an order dated November 28, 2002. It is further stated that at a later stage the learned advocate of the applicants came to know that by an order dated December 6, 1999 and November 26, 2001 the company went into liquidation and thus it is contended that the delay in filing the application needs to be condoned for the said reasons.

( 5 ) THE substantive prayer is founded on the ground that the lease is for a certain duration and is expiring by efflux of time on December 31, 2000, in terms of the said lease deed (annexure 'a' ). Clause IV (c) thereof has been heavily relied upon by the applicants wherein it is stipulated that the lease would cease and determine if tenant goes into liquidation. It was thereupon contended by Mr. P. C. Sen, learned senior advocate of the applicants that there is no saleable interest in the said property.

( 6 ) ABOVE application is resisted, inter alia, by Shiv Sankar Pasari, erstwhile Managing Director of the respondent-Company (in liquidation) and pursuant to leave granted an affidavit-in-opposition has been filed by him. Mr. Talukdar led by Mr. P. C. Chatterjee, learned senior advocate, appeared on his behalf.

( 7 ) AFFIDAVITS-IN-OPPOSITION have also been filed on behalf of the Allahabad Bank and ICICI Bank. Learned counsel for the respective Bank have also made submissions on behalf of the said two Banks opposing the applicants' prayer for disclaimer.

( 8 ) OFFICIAL Liquidator was represented by Mr. Arunava Sarkar, learned advocate, though, no affidavit-in-opposition has been filed on his behalf. Learned counsel mainly referred to the order passed by the Company Court discharging the Official Liquidator and submitted that in such view of the matter Official Liquidator has no role to play in the matter nor can Official Liquidator disclaim the property in question which is not in his possession nor of which is he entitled to possession.

( 9 ) MR. P. C. Sen, learned senior counsel for the petitioner contended that under the provisions of the companies Act when an order of winding up is passed statutorily the properties vest in the Official Liquidator and, therefore, in terms of the section 535 of the Companies Act, an application can be made to Court for direction upon the Official Liquidator to disclaim the property and thereby absolve the

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