TaxTMI 
TaxTMI 
1984 (6) TMI 181
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....e LIC from April 1,1974. The LIC by its advocate's letter forwarded to the company a statement of the outstanding dues of the company to the LIC amounting to about Rs. 10,00,000 from April 1, 1974, up to July, 1976. On July 27, 1976, the LIC terminated the lease of the company in respect of the said building being premises No. 12, Chowringhee Road and No. 1, Chowringhee Palace. Calcutta, by serving on the company a notice calling upon it to quit and vacate and deliver vacant and peaceful possession of the building. Thereafter, on March 12, 1977, the LIC also served on the company a statutory notice under section 434 of the Companies Act. The LIC also filed a winding-up petition before a company court judge of this court and obtained an order for the winding-up of the company. The said order, however, was stayed by the appeal court in the appeal preferred by the company. On March 25, 1980, the company was, however, directed to be wound up on an application for winding-up of one Md. Noor Navi and the official liquidator was directed by the court to take possession of the books, documents and assets of the company. Against that order of winding-up, the company preferred an appeal and ....
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....tel building of the company. Further, it was prayed that the LIC should be directed not to take possession or occupy and/or dispose of in any manner whatsoever the hotel building of the company. D. K. Sen J., by his order dated December 20, 1983, dismissed the said application of the appellants. At this stage, it may be stated that after the appellants filed the said application under sections 446 and 466 of the Companies Act on July 27, 1983, on the next day, that is, on July 28, 1983, the Government of West Bengal issued a notice under section 3 of the West Bengal Relief Undertakings (Special Provisions) Act, 1972, hereinafter referred to as the Relief Undertakings Act, declaring the company as a relief undertaking with effect from that date for a period up to January 27, 1984. On the said day, another notification was issued by the State Government under section 4 of the Relief Undertakings Act. Be that as it may, the appellants being aggrieved by the judgment and order dated December 20, 1983, of the learned judge preferred the instant appeal. Appellant No. 1, Maneck Noshirwan Kaka, claims to be the authorised representative of appellants Nos. 2 and 3, who are contributories a....
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....ts Nos. 2 and 3 to appellant No. 1 having been made long thereafter without any direction of the court must be held to be void. It is true that appellants Nos. 2 and 3 are the contributories of the company and the application may be said to be maintainable at their instance. Both the appellants Nos. 2 and 3 were also parties in the application under sections 446 and 466 of the Companies Act. It is appellant No. 1 who wants to revive the company and run the hotel business. Appellants Nos. 2 and 3 do not seem to be interested in the matter. Moreover, under section 466, it is discretionary with the court to stay the winding-up proceeding. As the transfer of shares to appellant No. 1 by appellants Nos. 2 and 3 is void, the court may not stay the winding-up proceeding. Theoretically, as appellants Nos. 2 and 3 are also parties, the application under sections 446 and 466 of the Companies Act is maintainable, but it is not maintainable at the instance of appellant No. 1 alone. In the circumstances, it is now for the court to consider whether the court would stay the winding-up proceeding or not. The proposed scheme of appellant No. 1, which was annexed to the copy of the letter addressed....
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....he West Bengal Premises Tenancy Act, 1956, is not applicable to the instant case, for the lease of the building in question is over 25 years. It is the contention of the appellants that in view of rule 268 of the Companies (Court) Rules, 1959, hereinafter referred to as "the Rules", the disclaimer has not yet been operative. Rule 268 provides as follows : "Every disclaimer shall be filed in court by the liquidator and shall not be operative until it is so filed. Where the disclaimer is in respect of a leasehold interest, it shall be filed in court forthwith. Notice of the filing of the disclaimer shall be given to the persons interested in the property. The disclaimer shall contain particulars of the interest disclaimed and the statement of the persons to whom notice of the disclaimer has been given. The disclaimer shall be in Form No. 133 and a notice of disclaimer in Form No. 134. Where a disclaimer has been filed in court, the liquidator shall file a copy thereof with the Registrar of Companies." The provision for disclaiming the property of a company which is being wound up is contained in section 535 of the Companies Act. Under section 535, only onerous property of the comp....
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....of the court in disclaiming the property, but did not file the disclaimer in court. Now, the question is whether the disclaimer has become operative. Much reliance has been placed on behalf of the appellants on rule 268 of the Rules. It is submitted that as the disclaimer has not been filed in court, it is not operative. The learned counsel for the appellants submits that rule 268 is mandatory and, therefore, it must be held that as the official liquidator did not file the disclaimer in court, such disclaimer has not yet taken place in respect of the property in question. We are, however, unable to accept this contention. Here, the disclaimer has not taken place at the instance of the official liquidator. Section 535 of the Companies Act and rule 268 of the Rules relate to a disclaimer that may be made in accordance with the leave granted by the court to the official liquidator on his prayer to disclaim any property. It will be for the official liquidator to disclaim it. The official liquidator will not, however, be bound to disclaim the property, for the court only grants leave to disclaim and does not direct the official liquidator to disclaim the property. So, after the official....