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2013 Supreme(Cal) 35
IN THE HIGH COURT AT CALCUTTA
ASHOKE KUMAR DASADHIKARI, J.
In the matter of : BANGUR BROTHERS LIMITED (IN LIQUIDATION)
AND
In the matter of : PDGD INVESTMENTS & TRADING (P) LTD.
VS.
THE OFFICIAL LIQUIDATOR
C.A. NO. 325 OF 2010 and C.P. NO. 151 OF 2003
Decided On : January 22, 2013
For the Petitioner: Mr. S. N. Mukherjee, Sr. Adv. Mr. Ratnanko Banerjee, Adv. Mr. Sushanta Kr. Basu, Adv. Mr. Ashoke Basu, Adv. Mr. Kuldeep Mullick, Adv. Mr. Ajoy, Guggar, Adv.
For the Intervener: Mr. Ranjan Bachawat, Adv. Mr. Dhiren Sharma, Adv. Mr. Prithwiraj Sinha, Adv. Mr. Nilay Sen Gupta, Adv.
For the Official Liquidator: Mr. M. C. Ghosh, Adv. Mrs. M. Sen, Adv.
The Company Court has the power to order disclaimer of the property but does not have any power of evict the persons in possession and as such the application must fail.
Headnote:
COMPANY - DISCLAIMER - TENANCY - SUB-TENANCY - POSSESSION - EVICTION - SECTION 535 OF THE COMPANIES ACT - SECTION 446 OF THE COMPANIES ACT - WEST BENGAL PREMISES TENANCY ACT, 1956 - WEST BENGAL PREMISES TENANCY ACT, 1997 - Where the Official Liquidator has not taken possession of the premises in question, he would be deemed to have been in possession, as the property in the tenancy right were admittedly an asset of the Company. The present owner, the applicant herein, is entitled to get the property released in their favour. However, if the Bangur Brothers Limited inducted the interveners as alleged sub-tenants and realised rents from them, they are in occupation of an area of 1645 sq. ft. only. According to the provisions contained under the Rent Act both old and new, creation of sub-tenancy without written consent of the landlord is a ground of eviction of the tenant. In such a case, liberty is granted to the applicant, admittedly the landlord, to institute a suit against the Company (in liquidation) as well as the interveners for the purpose of resolving issue and for getting back possession of the property in question, before the Company Court, which the Company Court is entitled to entertain under Section 446 (2) of the Companies Act, 1956.
Fact of the Case:
PDGD Investments & Trading (P) Ltd. (PDGD) filed a disclaimer application under Section 535 of the Companies Act seeking a direction upon the Official Liquidator to make over possession of the concerned premises with knowledge that the Official Liquidator is not in actual possession. PDGD also asserted that the Official Liquidator has no use of the concerned premises for the beneficial winding up of the Company and the Official Liquidator is under a duty and obligation to disclaim the premises in favour of PDGD and the disclaimer will release the Official Liquidator and the Company in liquidation from performing onerous covenant. PDGD also prayed for a direction upon the Official Liquidator to remove the trespassers from the premises and to make over possession to them.
Finding of the Court:
The Court directed the Official Liquidator to release the property in favour of the applicant. However, since the Bangur Brothers Limited inducted the interveners as alleged sub-tenants and realised rents from them, they are in occupation of an area of 1645 sq. ft. only. According to the provisions contained under the Rent Act both old and new, creation of sub-tenancy without written consent of the landlord is a ground of eviction of the tenant. In such a case, liberty is granted to the applicant, admittedly the landlord, to institute a suit against the Company (in liquidation) as well as the interveners for the purpose of resolving issue and for getting back possession of the property in question, before the Company Court, which the Company Court is entitled to entertain under Section 446 (2) of the Companies Act, 1956.
Issues: 1. Whether the applicant is entitled to get the property released in their favour? 2. Whether the Official Liquidator has any use of the concerned premises for the beneficial winding up of the Company? 3. Whether the Official Liquidator is under a duty and obligation to disclaim the premises in favour of PDGD? 4. Whether the disclaimer will release the Official Liquidator and the Company in liquidation from performing onerous covenant? 5. Whether the Official Liquidator should remove the trespassers from the premises and make over possession to PDGD?
Ratio Decidendi: 1. The property in question were of no use to the Company nor it can be used or utilized for the purpose of winding up of the Company. The property in the tenancy right of the Company is an onerous one which was also admitted by the learned Counsel appearing for the Official Liquidator in Court. 2. The present owner the applicant herein is entitled to get the property released in their favour. 3. Bangur Brothers Limited inducted the interveners as alleged sub-tenants and realised rents from them. They are in occupation of an area of 1645 sq. ft. only. 4. According to the provisions contained under the Rent Act both old and new, creation of sub-tenancy without written consent of the landlord is a ground of eviction of the tenant. 5. The Company Court is entitled to entertain under Section 446 (2) of the Companies Act, 1956.
Final Decision: The application is allowed. The Official Liquidator is directed to release the property in favour of the applicant. Liberty is granted to the applicant to institute a suit against the Company (in liquidation) as well as the interveners for the purpose of resolving issue and for getting back possession of the property in question, before the Company Court.
ASHOKE KUMAR DASADHIKARI, J. :-
This disclaimer application filed by PDGD Investments & Trading (P) Ltd. (hereinafter referred to as “PDGD”) under Section 535 of the Companies Act has come up for consideration. The applicants prayed for a direction upon the Official Liquidator to make over possession of the concerned premises with knowledge that the Official Liquidator is not in actual possession. The applicant also asserted that the Official Liquidator has no use of the concerned premises for the beneficial winding up of the Company and the Official Liquidator is under a duty and obligation to disclaim the premises in favour of PDGD and the disclaimer will release the Official Liquidator and the Company in liquidation from performing onerous covenant. The applicant also prayed for a direction upon the Official Liquidator to remove the trespassers from the premises and to make over possession to them.
2. The applicant, PDGD acquired the ownership of the subject premises being demarcated portion of 2621 sq. ft. on eastern portion of 2nd floor of premises of 14, Netaji Subhas Road, Kolkata on the basis of one scheme of arrangement sanctioned by this Court on 1st February, 2006 under Sections 391 and 392 of the Companies Act, between M/s. Venkatesh Company Ltd., the erstwhile owners and PDGD Investments. In view of the scheme all ownership rights of M/s. Venkatesh Company Ltd. stood transferred and vested to PDGD. PDGD filed this application in the proceedings for winding up of the Company (in liquidation) i.e. Bangur Brothers Ltd. which was in occupation of the said premises as a tenant under M/s. Venkatesh Company Ltd., the erstwhile owners and thereafter under PDGD, present owners, on a monthly rental. However, there is no written tenancy agreement between the parties. Bangur Brothers Limited wound up by an order dated 6th December, 2006 by this Court. PDGD came to know about the order sometimes prior to 5th February, 2009. Coming to know about the aforementioned order PDGD issued a letter to the Official Liquidator on 5th February, 2009 to disclaim the said premises in respect of which the company (in liquidation) viz. Bangur Brothers Ltd. was a tenant PDGD also issued another letter on 13th February, 2009.
3. The Official Liquidator in reply informed PDGD that he did not obtain possession of the said premises and some third parties claiming to be tenants in respect of the said premises are in occupation. PDGD replied that it had no relation of landlord and tenant between the trespassers i.e. Adhunik Corporation Ltd. or Jugal Kishore Agarwal or Adhunik Metalic Ltd. and further they were never accepted as tenants by PDGD.
4. By a letter dated 17th February, 2009 PDGD through their learned Advocate informed the Official Liquidator that there was no landlord tenant relationship with any person or Company. The Company (in liquidation), Bangur Brothers Ltd. was only tenant and, therefore, the property should be disclaimed by the Official Liquidator. The Official Liquidator called upon PDGD to submit original claim and proper rent receipts with regard to the tenancy. By a letter dated 27th March, 2009 all relevant documents were submitted on behalf of the PDGD. In spite of receipt of all such documents the Official Liquidator did not disclaim the property. Thereafter several letter were issued to the Official Liquidator but the Official Liquidator replied PDGD that they should prove exclusive ownership rights of the premises by way of documents. The applicant PDGD replied to the said letter and contended that it is unreasonable and arbitrary on the part of the Official Liquidator to claim any further document for proving exclusive ownership specially when the Company (in liquidation) itself has admitted ownership of PDGD. They have also paid rents until May, 2007. However, the Official Liquidator did not take any step.
5. Mr. Mukherjee, learned Senior Counsel, appearing for the applicant PDGD submitted that Adhunik Corp
