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jpc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. 3078 OF 2009

IN

APPEAL NO. 219 OF 2004

IN

COMPANY APPLICATION NO. 405 OF 2002

IN

COMPANY PETITION NO. 1125 OF 2001

Bhartiya Kamgar Morcha

.. Appellant

Versus

Patel Engineering Co. Ltd.

and another

.. Respondents

Mr. Ram Apte, Senior counsel a/w Mr. M. S. Lagu for the appellant

Mr. Mustafa Doctor a/w Nimay Dave i/w Bachubhai Munim and Co

for Respondent No.1

Mrs. Aruna Pai for Official liquidator

CORAM : B.H. MARLAPALLE &

SMT. V. K. TAHILRAMANI, JJ.

DATE : 18

th February, 2010

P.C.:

1.

We have heard Mr. Apte, learned Senior Counsel

alongwith Mr. Lagu for the appellant, Mr. Doctor for respondent no.1

in the Motion and Mrs Pai, appears for respondent no. 2.

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2.

Delay of 15 days caused in filing the Motion is hereby

condoned. So far as the prayer for restoration of Appeal No. 219 of

2004 is concerned, we are not inclined to grant the same for the

following reasons:

i. When Appeal No.219 of 2004 was admitted by this Court on

29.3.2004, the only issue requiring consideration was stated

to be as to whether the lease concerning the property of

the Company was a long term lease and, therefore, fell into

the hotchpotch of the Company in liquidation. The Company

in liquidation was M/s HES Ltd. and the present respondent

no.1 is the owner of the property on lease.

ii. When the Appeal was admitted, the eviction proceedings

taken out by respondent no.1 Company against the

Company under liquidation were pending in RAE & R Suit

No. 261/828 of 1992 before the Small Causes Court at

Mumbai. The said Suit was decreed in favour of respondent

no.1 on 19/23

rd August, 2004 and through the official

liquidator, respondent no.1 received possession of the

lease property on 4.2.2005. The official liquidator filed a

report on 30

th January, 2006 before the learned Company

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Judge pointing out that pursuant to the decree of Small

Causes Court, the lease property was handed over to

respondent no.1. This report was dealt with by the

Company Judge in his order dated 10

th February 2006. It

was stated that Miscellaneous Notice No.332 of 2005 was

taken out by the respondent no.1 Company before the

Small Causes Court and, therefore, the learned Company

Judge observed that there will be no order on the report of

the official liquidator submitted on 30

th January, 2006.

iii. Contempt Petition No. 77 of 2007 came to be filed in Notice

of Motion No. 927 of 2004 filed in this Appeal and by the

reasoned order dated 25

th March, 2008, the contempt

petition was dismissed and the show cause notice came to

be discharged. It was held in the order dated 25

th March,

2008 by the learned Single Judge that respondent no.1 was

not estopped by any legal bar to proceed with the eviction

Suit during the pendancy of the Appeal and the order

passed by the Division Bench did not stay the proceedings

before the Small Causes Court. The landlord proceeded

with that remedy and having obtained the decree for

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eviction, executed that decree with notice to the official

liquidator as well as to the appellant union and the pendancy

of the liquidation proceeding could not be construed as a

bar on the landlord seeking recourse to his better interest

in accordance with law in a Suit for eviction before the Small

Cause court, which Suit came to be decided in

accordance with the Rent Control legislation.

iv. This order dated 25

th March, 2008 came to be challenged

in SLP (Civil) No. 14590 of 2008 and it was dismissed by the

Supreme Court on 10.11.2008. It is thus clear that the lease

property which was the subject matter in Appeal No. 219 of

2004 is no more a lease property as the eviction Suit filed

by respondent no.1 has been allowed and it has been put in