2024 (7) TMI 1263 - HC - Companies Law

Delhi HC allows Official Liquidator to disclaim onerous office property, orders handover within 45 days to applicant

Delhi HC granted leave to Official Liquidator to disclaim onerous office property and ordered handover of peaceful possession to applicant within 45 days. ... Disclaimer of Onerous property - Praying for leave to be granted to the Official Liquidator to disclaim the office space - praying for peaceful, vacant and khas possession of the sub-demised office space to the applicant from the Official Liquidator - HELD THAT:- Any mortgage or charge over the property in question would exist and be enforceable in law only so long as the sub-lease was subsisting in favour of the company (in liquidation) envisaging observance and performance of all stipulations as contained in the sub-lease. As the narrative unfolds, loans were taken from the consortium of the banks, including PNB, by the company (in liquidation) and evidently its account became a “Non Performing Asset” w.e.f. 31.12.2011 and symbolic possession was taken over by PNB on 06.02.2013. The objections espoused by the objector - PNB to the CO. APPLs. 517/2018 and 60/2022 cannot be sustained in law. The objector-PNB cannot claim right in the property beyond what was available to the company (in liquidation) during the subsistence of the sub-lease rights. In other words, since the rights of the bank to seek forfeiture of the mortgaged property flew from the rights of the sub-lessee i.e. the company (in liquidation), on the termination of such rights at the behest of the applicant-IIPL, nothing survived in favour of the objector-PNB, so as to lay its claim over the property for the remainder of the period of the lease. Incidentally, the facts of this case are similar to what came up for consideration before Supreme Court in the case of Stressed Assets Stabilization Fund [2019 (10) TMI 1526 - SUPREME COURT], wherein the loans were obtained by the lessee on the strength of mortgage of title deeds of the leased industrial property, but subsequently, the company went into liquidation. The West Bengal Small Industries Development Corporation Limited, which was the original lessor terminated the lease as the lessee had ceased to carry on manufacturing activities beyond the stipulated acceptable period. Thus, leave is granted to the Official Liquidator to disclaim the entire sub-demised office space containing super built-up area of 16523 sq. feet on the 15th floor of the building “Infinite Benchmark” constructed on the demised plot of land number G-1 in Block No. EP & GP, Sector V of Bidhannagar in the District of North 24-Parganas within Police Station Bidhannagar (East), Salt Lake City, Kolkata-700 091, and handover the peaceful, vacant and khas possession of the property to the applicant-IIPL by removing padlocks and/or seals put by the Official Liquidator or by PNB upon the same, within 45 days from today. Application disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether the Official Liquidator is entitled to disclaim the sub-demised office space as an 'onerous property' under Section 535 of the Companies Act in a winding up where the sub-lessee had breached payment covenants and the sub-lease had been validly terminated prior to the winding up order. 2. Whether a secured creditor who obtained a mortgage/charge over the sub-lessee's sub-leasehold interest can claim any rights in the property after the sub-lease has been validly terminated by the sub-lessor. 3. Whether the applicant claiming re-entry and delivery of peaceful, vacant and khas possession from the Official Liquidator is entitled to restoration of possession and ancillary reliefs (including payment of outstanding lease, charges and mesne profits), and the extent to which monetary claims must be adjudicated in the winding up estate. 4. Procedural and consequential questions regarding the Official Liquidator's duties on disclaimer: re-entry, inventory, valuation and removal/sale of fittings, and conditions (security/incidentals) attached to handing over possession. ISSUE-WISE DETAILED ANALYSIS Issue 1: Power to disclaim under Section 535 where sub-lease was terminated prior to winding up Legal framework: Section 535 of the Companies Act enables the Liquidator, with leave of the Tribunal/Court within prescribed time, to disclaim onerous property (including leasehold property burdened with onerous covenants). The statute contemplates examination of burdens and may permit vesting/delivery orders subject to terms; disclaimer determines company's rights as from disclaimer date but does not, save for necessary release, affect rights of other persons. Precedent treatment: The Court referenced authorities applying the principle that onerous sub-tenancies/leaseholds can be disclaimed and that the Tribunal/Court may require notices or impose terms when permitting disclaimer. The Court treated the cited precedent as supporting the power to disclaim where lease obligations render property onerous on the estate. Interpretation and reasoning: The Court examined the registered sub-lease covenants, the breach of payment obligations by the sub-lessee, and the statutory and contractual notices culminating in termination prior to the winding up order. The Court found the sub-lease obligations to be onerous on the estate given substantial unpaid charges and limited funds in the company's account. The disclaimer power under Section 535 was held to be appropriately invoked because the sub-lease was a burden that the Liquidator could disclaim to relieve the estate from continuing liabilities. Ratio vs. Obiter: Ratio - where a sub-lease is onerous and has been terminated by the sub-lessor prior to winding up, the Official Liquidator may, on obtaining leave, disclaim the property as onerous under Section 535; discretionary safeguards in Section 535 must be observed. Conclusion: Leave to the Official Liquidator to disclaim the sub-demised office space as onerous property is warranted and granted, subject to statutory safeguards and consequential orders for delivery of possession. Issue 2: Rights of secured creditor post-termination of sub-lease - nemo dat quod non habet Legal framework: A mortgagee of a lessee's sub-leasehold interest derives rights only to the extent of the lessee's subsisting rights under the sub-lease. On termination/forfeiture of the sub-lease in accordance with its terms, the lessee's interest ceases and nothing greater can be claimed by the mortgagee. Precedent treatment: The Court relied on authority holding that a mortgagee cannot claim rights superior to the lessee and followed that principle in determining priority of rights post-termination. Interpretation and reasoning: The sub-lease expressly permitted the sub-lessee to mortgage its sub-leasehold interest subject to mortgagee observing the sub-lease covenants (including payment obligations). Because the sub-lessee failed to pay and the sub-lessor validly exercised its option to terminate/forfeit the sub-lease prior to winding up, the lessee's interest ceased. Consequently, the secured creditor's claimed rights (symbolic/physical possession under SARFAESI and mortgage) could not survive the termination to the extent they exceeded the extinguished lessee's rights. Ratio vs. Obiter: Ratio - secured creditor/mortgagee cannot assert a greater right than that enjoyed by the mortgagor-lessee after lawful termination of the underlying lease/sub-lease; 'nemo dat quod non habet' governs the outcome. Conclusion: The objection of the secured creditor to disclaimer and delivery of possession is unsustainable; nothing survived in the secured creditor's favour after valid termination of the sub-lease. Issue 3: Entitlement to restoration of possession and monetary claims (lease/charges/mesne profits) Legal framework: On disclaimer under Section 535 and consequent vesting/delivery orders under Section 535(6), the Tribunal/Court may direct delivery of property to persons entitled, impose terms (including liability to perform lessee covenants), and provide for proof of compensation as a debt in winding up for persons injured by disclaimer. Sections 446 and 456 impose restrictions on suits and direct custody of company property by the Liquidator. Precedent treatment: The Court applied established rules regarding delivery of possession after disclaimer and the procedure for claims against the estate, treating monetary claims as matters to be adjudicated under the winding up process or by the Liquidator assessing surplus assets. Interpretation and reasoning: The Court found that the applicant's right to re-entry arose earlier through termination notices and that the Official Liquidator had taken possession (locked/sealed). Consequently, the Court granted leave to disclaim and directed the Official Liquidator to hand over peaceful, vacant and khas possession within a specified period. As to monetary claims (lease, electricity, taxes, mesne profits), the Court left adjudication and payment contingent upon availability of surplus assets in the liquidation - such claims to be dealt with by the Official Liquidator in the winding up estate and proven as debts where appropriate. Ratio vs. Obiter: Ratio - upon valid disclaimer and where sub-lessor's termination pre-existed winding up, Court may direct restoration of possession to sub-lessor; claims for monetary relief arising from the lease are to be adjudicated within the liquidation and can be proved as debts, recoverable only from surplus assets. Conclusion: Restoration of possession to the sub-lessor is ordered; monetary claims for arrears and mesne profits remain subject to adjudication by the Official Liquidator and payment only from surplus assets of the estate. Applicant must bear security/incidentals for safekeeping costs. Issue 4: Official Liquidator's procedural duties on disclaimer - inventory, valuation, removal/sale, and conditions Legal framework: Section 535 allows the Tribunal/Court to impose terms and make orders concerning vesting and delivery; the Official Liquidator has custody duties under Section 456 to manage company property pending orders. Precedent treatment: The Court treated procedural obligations of the Official Liquidator as integral to a fair and orderly handover and as consistent with statutory powers to manage and dispose of assets. Interpretation and reasoning: The Court directed the Official Liquidator to re-enter the premises, make an inventory of furniture/fixtures, value them, and remove or sell them within a defined time to facilitate delivery. It also directed that claims for costs incurred in safeguarding the property be borne by the applicant as a condition of restoration. Monetary claims for pre-termination charges remain for the Liquidator's adjudication. Ratio vs. Obiter: Ratio - Court may attach reasonable procedural conditions (inventory, valuation, sale/removal, cost security) to a disclaimer and delivery order to protect the liquidation process and third-party interests; these are proper exercise of discretion under Section 535 and ancillary powers. Conclusion: Official Liquidator must conduct inventory, valuation and removal/sale of fittings within specified time; possession to be handed over within stipulated period; applicant to bear security and incidental costs; monetary claims to be adjudicated by the Liquidator and paid only from surplus assets if available.