TaxTMI 
TaxTMI 
1986 (4) TMI 272
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....to M/s General Radio and Appliances Co. (P.) Ltd., the first appellant, on a monthly rent of Rs. 200 on the basis of a rental agreement dated January 12, 1959 (exhibit P-6), executed by the first appellant. Clause 4 of the said agreement provides that the tenant shall not sub-let the premises or any portion thereof to any one without the written consent of the landlord. The respondent landlord, M. A. Khader, issued a notice dated December 26, 1968, to the tenant, appellant No. 1, M/s General Radio and Appliances (P.) Ltd., terminating the tenancy on the ground of sub-letting and or transfer and assignment of the interest of appellant No 1 to appellant No 2. Thereafter, on April 7, 1969, Rent Control Case No. 96 of 1969 was filed by the respondent-landlord for eviction of the appellant-tenant on two grounds, i.e., (i) unauthorised subletting of the premises by the first appellant, and (ii) wilful default in payment of rent from October 7, 1968, to April 7, 1969. Appellants Nos. 1 and 2 filed a joint counter contending that there was neither sub-letting, nor assignment of the tenancy rights by the first appellant to the second appellant, i.e., the first appellant company was amalgama....
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....r of the court. It was held that such a transfer of assets, being an involuntary one, did not amount to assignment of the lease by appellant No. 1 company to appellant No. 2 company and, as such, it did not violate the terms of the lease. By amalgamation of appellant No. 1 company with appellant No. 2 company, appellant No. 1 company is not wound up but it is merely blended with the other company. It was also held that there was no wilful default on the part of the tenant to pay the rent for the period mentioned in the petition in as much as in spite of the tender of the rent, the respondent-landlord refused to accept the same and to grant receipt in the name of appellant No. 2 company. The appeal was, therefore, allowed and the order of the Rent Controller was set aside dismissing the eviction petition with costs. Against this judgment and order, an application in revision, being Civil Revision Petition No. 684 of 1974, was filed in the High Court of Judicature of Andhra Pradesh, Hyderabad. On April 23, 1976, the said revision application was allowed and the judgment and decree of the appellate court was set aside, restoring the decision of the Rent Controller. It was held that t....
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....ions of the scheme which are as follows: "With effect from January 1, 1967, the undertaking and all the property, rights, powers of every description including all leases and tenancy rights, industrial, import and all other licences, quota rights of General Radio and Appliances (P.) Ltd. (hereinafter called 'the transferor company') without further act or deed be transferred and vested or deemed to be transferred and vested in the National Ekco Radio and Engineering Co. Ltd. (hereinafter called 'the transferee company'), etc." It has been urged on behalf of the appellant that the amalgamation of M/s. General Radio and Appliances (P.) Ltd., the first appellant, with the second appellant company is an involuntary one, which has been brought into being on the basis of the order of the High Court of Bombay made under sections 391 and 394 of the Companies Act. The first appellant company has not been wound up and/or liquidated, but it has been merely blended with the second appellant on the basis of the order of the court. As such there has been no sub-letting by the first appellant company to the second appellant company of the tenancy right of the first appellant in respect of the s....
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....arch 27, 1968, sanctioning the scheme of amalgamation in Company Petition No. 4 of 1968, filed by the first appellant, all the property, rights and "powers of every description including all leases and tenancy rights, etc., of the first appellant were transferred to and vested or deemed to be transferred and vested in the second appellant, M/s. National Ekco Radio and Engineering Co. Ltd. It also appears that appellant No. 1 company stood dissolved from April 16, 1968. This clearly goes to show that General Radio and Appliances (P.) Ltd., the tenant company, has transferred all its interest in the tenanted premises in favour of appellant No. 2, i.e., National Ekco Radio and Engineering Co. Ltd. (the transferee company). The order of amalgamation has been made on the basis of the petition made by the transferor company in Company Petition No. 4 of 1968 by the High Court of Bombay. As such, it cannot be said that this is an involuntary transfer effected by order of the court. Moreover, the first appellant company is no longer in existence in the eye of law and it has effaced itself for all practical purposes. The second appellant company, i.e., the transferee company, is now the tena....
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....lea that the tenancy right including the leasehold interest in the tenanted premises have come to be transferred and vested in the transferee company on the basis of the order made under sections 391 and 394 of the Companies Act. The effect of an order under section 153A of the Indian Companies Act, 1913, which corresponds to sections 391 and 394 of the Companies Act, 1956, has been very succinctly stated in the case of Sahayanidhi Virudhunagar Ltd. v. A. R. S. Subrahmanya Nadar [1950] 20 Comp. Cas. 214 (Mad). Section 153(A) of the Companies Act has been enacted with a view to facilitate arrangements and compromises between a company and its creditors or shareholders which involved a transfer of its assets and liabilities to other companies as part of such arrangement. If any such scheme or arrangement is sanctioned by the court, the court is empowered by the section to make provisions by its order sanctioning the arrangement or any subsequent order, for the transfer of the assets and liabilities of a company in liquidation to another company styled in the section as transferee company. Where an order of court made under the section provides for the transfer of the assets and liab....
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....e petitioner. It has been observed as follows (at p. 26 of AIR 1950 Mad). "This act on the part of the two partners other than the petitioner cannot amount to a transfer or sub-letting of the premises to the petitioner. It is true that the courts in England have taken up an extreme view that even when one of two partners after the dissolution of the partnership assigns to the other partner the interest of the partnership in premises which had been taken on lease by the partnership, it would amount to a breach of the covenant prohibiting an assignment of the lease without the consent of the lessor...But this court was not inclined to apply this doctrine to Indian conditions. In Koragalava v. Jakri Beary [1926] 52 MLJ 8 ; AIR 1927 Mad. 261, Devadoss J. held that the transfer by a co-lessee in favour of another lessee of his right in the lease would not be a breach of a covenant against assignment without the consent of the landlord." This decision has got no application to the instant case inasmuch as in that case, the only question involved was whether the transfer by a co-lessee in favour of another lessee of his rights would be a breach of covenant against assignment without the....
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....at there was no transfer of the right of the former company under the lease to the latter company. On such transfer, the tenant is liable to be evicted." It is pertinent to mention in this connection the decision of this court in Parasram Harnand Rao v. Shanti Parsad Narinder Kumar Jain [1980] 3 SCR 444; AIR 1980 SC 1655. In this case, the appellant landlord executed a lease in respect of the disputed premises in favour of respondent No. 2, for three years on April 1, 1942. In 1948, the appellant landlord filed a suit for eviction of the tenant for non-payment of the rent and for conversion of user of the premises. The suit for possession was dismissed, but a decree for arrears of rent was passed and it was held that Laxmi Bank was the real tenant. The Bombay High Court subsequently made an order that the bank be wound up and in the winding up proceedings, the High Court appointed an official liquidator who sold the tenancy right to respondent No. 1 in 1961. The sale was subsequently confirmed by the High Court and respondent No. 1 took possession of the premises on February 24, 1961. The landlord appellant filed an application under the Delhi Rent Control Act for eviction of the ....