Shri Brihad Bhartiya Samaj Vs

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

 ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

 COMPANY APPLICATION NO.1350 OF 2007
 IN
 COMPANY PETITION NO.767 OF 1997

¶5

 Shri Brihad Bhartiya Samaj .. Applicant

¶6

Vs.

¶7

 Orkay Industries Ltd. Mumbai .. Respondents

¶8

 Mr.R.M.Vasudeo for the applicant

¶9

 Mr.S.Ramakantha, Dy.Official Liquidator present

¶10

 CORAM : S.C.DHARMADHIKARI, J

¶11

DATED : 6TH JUNE, 2008

¶12

 P.C.:

¶13

 1. This is a Company Application whereby the
 Applicant trust seeks a direction to the Liquidator
 to hand over possession to it of an immovable
 property admeasuring 3950 sq.ft. on the Southern
 side of the first floor of NKM International House,

¶14

 178, Backbay Reclamation, Mumbai 400 020
 hereinafter referred to as the said premises.
 Further relief sought is that the Arrears of Rent
 as mentioned in prayer clause (b) to the Company

¶15

¶16

 Application be also directed to be paid to the
 Applicant.

¶17

 2. In the affidavit in support, it is stated
 by the applicant that the Company in Liquidation is
 a tenant of the applicants in respect of the said
 premises and the monthly rent is Rs.39,500/-
 excluding taxes and water charges. The applicants
 claim ownership of the building on the basis of a
 lease deed executed by the then Collector of Bombay
 and State of Maharashtra in their favour. It is a
 Trust registered under the Bombay Public Trust Act,
 1950, and it is the owner of the building.
 Portions / parts of the building have been let out
 by the applicant trust and the company in
 liquidation was a tenant in respect of the said
 premises.

¶18

 3. It is not in dispute that the Company was
 wound up by this court. Initially the applicants
 called upon the Official Liquidator who has been
 appointed Liquidator of the Company in Liquidation
 to pay arrears of rent or else the Demand notice
 stated that the Company would be compelled to

¶19

¶20

 initiate legal proceeding. However, all notices

¶21

 which were addressed to the Company in Liquidation
 / Official Liquidator at the address of the Company
 in Liquidation were returned back with remark
 ’closed’.

¶22

 4. The specific case of the applicants is that
 the premises have been kept locked and unused for
 quite some years. The Company in Liquidation is
 not using the premises. Moreover, the Official
 Liquidator does not require the premises for the
 purposes of the beneficial and proper winding up of
 the Company. In other words, none of the
 operations and functions with regard to the winding
 up of the company’s activities and business have
 been carried out or are being carried out in the
 said premises. Reliance is placed by Shri Vasudev
 on the decision of the Supreme Curt in the case

¶23

 reported in AIR 1983 SC 1061 in the case of
Ravindra Ishwardas Sethna and another v. Official
Liquidator, High Court, Bombay and another and AIR
1993 SC 1380 in the case of Smt.Nirmala R.Bafna,
Kershi Shiva Cambatta and others v. Khandesh
Spinning & Weaving Mills Co.Ltd. and another,

¶24

¶25

Official Liquidator and others. Shri Vasudev
 submits that the Company application be made
 absolute in the light of the factual position and
 the law laid down by the Honourable Supreme Court.

¶26

 5. The Official Liquidator has filed a report
 which had been placed before the court earlier.
 Thereafter, a further report is filed on 23.04.08
 and written submissions have also been handed in.
 The only reason and ground on which the request of
 the applicants is opposed by the Official
 Liquidator is that the applicants have not
 forwarded a copy of the Tenancy agreement under
 which the Company in Liquidation was inducted as a
 tenant. It has been urged that what the applicants
 have produced is a lease agreement dated 27.04.1973
 executed between Government of Maharashtra and the
 applicant. However, the Official Liquidator has
 himself referred to the surrender letter dated
 31.01.98 issued by the Company in Liquidation and
 the rent receipts dated 16.12.98. The argument is
 that the transaction has taken place during the
 period of commencement of winding up proceeding as
 the date of presentation of winding up petition is

¶27

¶28

 dated 2.9.97. Further, in the written submission,

¶29

 it is urged that this application should not be
 taken cognisance of as it is hopelessly barred by
 Limitation. The trust has failed to explain the
 delay in filing this application.

¶30

 6. To my mind, the present application cannot
 be dismissed on the ground of delay as urged. The
 Supreme Court in the case of Ravindra Ishwardas
 Sethna (Supra) has held that the provisions of
 Companies Act and more particularly section 457
 enables the Liquidator in winding-up by the court,
 with the sanction of the court, amongst others, to
 carry on the business of the Company so far as may
 be necessary for the beneficial winding up. In
 para 6 and 7 of the decision, the Supreme Court has
 referred to the settled principles and has held
 that the liquidator can retain the premises or hold
 on to the same only if they are required for the
 purposes of beneficial winding up or for
 efficiently carrying on winding up proceedings.
 Merely because the landlord / owner approaches the
 court after some delay, it is not open, in all
 cases and in this particular case, for the

¶31

¶32

 Liquidator to urge that the application should be

¶33

 dismissed. More so, when the averments and
 statements in the affidavit in support are not
 denied. No where in the report or the written
 submission has the Official liquidator stated that
 he has been carrying on business of the Company in
 Liquidation from the said premises or they are
 required to be retained for the beneficial and
 efficient winding up operations.

¶34

 7. In such circumstances, the law laid down in
 the decision would squarely apply to the facts of
 the present case. With regard to the claim of
 ownership of the Company, I have satisfied myself
 from a perusal of the original lease deed in favour
 of the applicants that the lease agreement and the
 property card, evidence creation of a right in
 favour of the applicants in respect of the said
 premises / building. The compilation of documents
 handed in contains several letters addressed by the
 Company in liquidation to the applicant forwarding
 therewith monthly rent and municipal tax so also
 water charges. If there was no relation of
 landlord and tenant / lessor and lessee, then,

¶35

¶36

 there were no occasion for the Company in
 Liquidation to address such letters or forward the
 amount of rent and taxes. The Company in
 liquidation has vacated / surrendered portion of
 the said premises to the applicants. Thus, there
 is no dispute about the letters being addressed and
 received. There is no denial of the fact that the
 claim of ownership has been substantiated. Merely
 because there is no written lease agreement between
 the applicant and the Company in liquidation does
 not mean that the relief claimed in the application
 has to be denied.

¶37

 8. It is well settled that the lease / tenancy
 was governed by the Bombay Rent Act, 1947. The
 rent receipts, evidence creation of tenancy. There
 is a notice of demand as well. In such
 circumstances, merely because the applicants have
 failed to produce the written lease agreement does
 not mean that the liquidator cannot be directed to
 hand over possession of the premises.

¶38

 9. For the reasons stated above, the Company
 Application succeeds. It is made absolute in terms

¶39

¶40

 of prayer clause (a). At the request of the

¶41

 Official Liquidator, time of 6 weeks is granted to
 surrender possession of the said premises to the
 applicant. However, as far as prayer clause (b) is
 concerned, liberty is granted to the Applicant to
 lodge their claim with regard to payment of arrears
 of municipal tax, water charges and municipal rent.
 Such a claim, if lodged, should be processed and
 scrutinised by the Official Liquidator strictly in
 accordance with law and orders be made thereon as
 expeditiously as possible and within a period of 6
 weeks from the date of receipt thereof. Official
 Liquidator is at liberty to take away movables or
 articles of the Company in liquidation lying in the
 said premises.

¶42

 (S.C.DHARMADHIKARI,J.)

Shri Brihad Bhartiya Samaj Vs

Case brief

What is this about?

What did the court decide?

Shri Brihad Bhartiya Samaj Vs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Lloyds Steel Industries Vs Parasram Purohit

Al-Qahtani Pipe Coating Terminal Vs the Official Liquidator, Liquidator of Otoklin Plant and Equipment Ltd. (in Liqn) and Ors.

M/S. Maharashtra Apex Corpn. Ltd. Vs the Official Liquidator of M/S. Arihand Electromech Engg.Co. Pvt. Ltd. (in Liqn.)

Cfl Aromas India Pvt. Ltd. Vs ---------------------------------------------

Precision Rubber Industries Pvt. Ltd. Vs ---------------------------------------------

Supreme Petrochem Limited Vs ---------------------------------------------