TaxTMI 
TaxTMI 
TaxTMI 
2013 (1) TMI 618
X X X X Extracts X X X X
X X X X Extracts X X X X
....eficial winding up of the Company and the Official Liquidator is under a duty and obligation to disclaim the premises in favour of PDGD and the disclaimer will release the Official Liquidator and the Company in liquidation from performing onerous covenant. The applicant also prayed for a direction upon the Official Liquidator to remove the trespassers from the premises and to make over possession to them. The applicant, PDGD acquired the ownership of the subject premises being demarcated portion of 2621 sq. ft. on eastern portion of 2nd floor of premises of 14, Netaji Subhas Road, Kolkata on the basis of one scheme of arrangement sanctioned by this Court on 1st February, 2006 under Sections 391 and 392 of the Companies Act, between M/s. Venkatesh Company Ltd., the erstwhile owners and PDGD Investments. In view of the scheme all ownership rights of M/s. Venkatesh Company Ltd. stood transferred and vested to PDGD. PDGD filed this application in the proceedings for winding up of the Company (in liquidation) i.e. Bangur Brothers Ltd. which was in occupation of the said premises as a tenant under M/s. Venkatesh Company Ltd., the erstwhile owners and thereafter under PDGD, present owne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd they are not entitled to be in possession or occupation. It was also submitted that the payment of lease rent is a onerous covenant that the Official Liquidator is unable to discharge. Mr. Mukherjee submitted that PDGD served a notice under Section 20 of the West Bengal Premises Tenancy Act, 1997 to the Company (in liquidation) for payment of fair rent and other charges. The Company is liable to pay a sum of Rs.27,000/- as fair rent and other charges from August, 2007. No rent has been received from the Company by PDGD Investments after May, 2007. Mr. Mukherjee also made a prayer that this application be treated as an application under Section 446 of the Companies Act and since PDGD had no relation with the trespassers now in possession, the Official Liquidator should remove the trespassers from the concerned premises and make over possession to PDGD. Mr. Mukherjee submitted that in course of hearing of this application the Official Liquidator through their Counsel has accepted the ownership of PDGD and also accepted that the premises is onerous property and should be disclaimed but on "as is where as basis". Mr. Mukherjee submitted the objection to the disclaimer has come fr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on) would indemnify the said interveners and provide alternative accommodation to them mutually acceptable as per terms of this agreement failing which compensation will be paid to tenant at the then prevailing market rates. He submitted that the said agreements are sham and it would be evident that Bangur Brothers Ltd. has been described to be a sub-tenant in such document and a right to sub-let was given to the objectors. It was further submitted that the alleged documents do not satisfy the requirements under the West Bengal Premises Tenancy Act, 1956 or of 1997. No document was ever produced from which it could be shown that the erstwhile landlord or PDGD gave written consent for such sub-letting. Mr. Mukherjee submitted that the alleged documents between the Company (in liquidation) and the interveners, who are both interested parties in continuing with their illegal sub-tenancy manufactured the impugned document to save their illegal occupancies. He pointed out that the admitted rent receipts which are on record issued by M/s. Venkatesh Company Ltd. as well as by the PDGD to the Company to Bangur Brothers Ltd., (in liquidation), clearly show one of the terms of tenancy betwee....
X X X X Extracts X X X X
X X X X Extracts X X X X
....submitted the objection on the side of the interveners that Section 446 of the Act has not been mentioned in the cause title of the petition and, therefore, the provisions of the said section cannot be invoked is of no consequence. He submits that even in case where the section was not mentioned the Court would have jurisdiction to deal with the issue under Section 446 of the Companies Act. Mr. Mukherjee cited a decision reported in AIR 1965 Calcutta Page 98 Para 24 (In re. Sulekha Works Ltd.). It was also submitted that the landlords have denied that there was any such written consent for induction of sub-tenancy and, therefore, the onus lies on the interveners to prove that there was permission and/or written consent on the side of the landlords. He submits that the plea taken on the side of the interveners that the onus lies on the landlords to prove sub-letting is of no substance. The owners cannot prove negative. Therefore, the onus is on the interveners to establish that such prior consent was given according to the provisions of the West Bengal Premises Tenancy Act 1956 or of 1997. According to Mr. Mukherjee the onus has not been discharged even prima facie by the interven....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication under Section 446 (2) of the Companies Act 1956. A direction on the Official Liquidator be issued to remove the trespassers from the premises and make over possession to the obligation herein. Learned Counsel for the Official Liquidator submits that PDGD is the owner of the property and they are not objecting to the disclaimer but the petitioner is not entitled to seek a direction upon the Official Liquidator to remove the occupants who are claiming to be the sub-tenants. However, it was submitted that the possession of the premises in question was not taken by the Official Liquidator as yet. He also admitted that the Official Liquidator had no use of the premises in question. It was submitted that some amount of money was deposited by the occupiers for few months as rent and the Official Liquidator is holding the same. Learned Counsel also submitted that from the available records there no such written consent in favour of granting subtenancy. The Official Liquidator requested the parties to produce the same but that was not made available to the Official Liquidator. Mr. Bachawat learned Counsel appeared for interveners submitted that the three interveners were not impl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wer is contemplated for eviction of tenants or even trespassers and there is no express power to evict and to give vacant possession to the applicant. He submits it is settled principle of law that exercise of powers under Section 535 are to be exercised cautiously, sparingly and only in respect of onerous property. He submitted that the cases cited on the side of applicant are of no help in view of the facts and circumstances of this case. Mr. Bachawat also submitted that no eviction can be ordered since the provision under Section 446 do not authorise to seek such eviction of sub-tenants. He submits the power under Section 446 of the Companies Act is discretionary and it has been held that such power should be exercised sparingly, cautiously and only in extreme cases. According to Mr. Bachawat the present situation do not warrant exercise of the provisions under Section 446. He submitted that the applicant do not mention or plead Section 446 and there is no reflection in the cause title even which is required in the Court Rules. Mr. Bachawat in support of such contention cited two decisions one is reported in 2003 (3) CLT 608 Para 35 [Ashoka Ghosh & Ors. Vs. The Official Liquida....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ued rent receipts all along. Clause 8 of the said agreement records that the Company (in liquidation) has the permission of superior landlords for sub-letting. The interveners in terms of such agreements are in occupation of the premises over 20 years without objection either by the superior landlord, Venkatesh Company Limited or by Bangur Brothers Limited. He submitted that the present applicant which has since become owner of the property cannot be permitted to deny the authority given by the erstwhile superior landlord to Bangur Brothers Limited (Company in liquidation) to create sub-tenancy. The tenancy was never terminated either by the previous landlord that is Venkatesh Company Limited nor by the tenant, Bangur Brother Limited (Company in liquidation). Accordingly he submits the relationship between the Company and the respondents and/or the interveners are established. He further submits that the premises in question are governed by the provisions of the West Bengal Premises Tenancy Act, 1997 and, therefore, the Company (in liquidation) and the interveners are protected under the provisions of the said Act and cannot be evicted unless the pre-condition of the said Rent Act ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ust be deemed to be in their possession. Mr. Bachawat submitted that the applicant deliberately refused to disclose the facts and he further submitted that the circumstantial evidence shows that sub-letting was permitted by the previous landlords. According to him the prayer of the applicant should not be allowed. Mr. Bachawat cited various other decision in support of his decisions. Mr. Bachawat also submitted that the principles decided in the cases cited by the learned Counsel for the applicant are not at all applicable in the instant case, since those cases are based on different sets of facts. After hearing the learned Counsel for the parties and after consideration of the entire matter it appears to this Court that the property in question were of no use to the Company nor it can be used or utilized for the purpose of winding up of the Company. The property in the tenancy right of the Company is an onerous one which was also admitted by the learned Counsel appearing for the Official Liquidator in Court. It is also admitted that present applicant PDGD, is the owner of the property in question. Although, the Official Liquidator did not take possession of premises in question....