2020 (1) TMI 1255

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....Insolvency and Bankruptcy Code, 2016 read with Regulation 10 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016 and Sec.429 of the Companies Act, 2013 praying for eviction of the respondent, Nicco Engineering Services Ltd. 3. The Liquidator contended that a leave and license agreement was executed in between the liquidator and the respondent on 30/11/2017 by agreeing to license a space ad-measuring 17500 square feet approximately on 1st Floor, NICCO House at Kolkata for a period of 11 months at a monthly license fee of Rs. 7 lakh. However, despite expiry of the period, the respondent did not surrender vacant possession of the building. Therefore, several notices had to be served for eviction of premises but respondent has chosen to disregard the same and continuing the unauthorised occupancy of the premises and, thus he filed this application praying for passing an order of evicting the respondent from the premises licensed to the respondent. 4. Misc. Application No. 1156/KB/2018 was filed by the very same liquidator alleging that subsequent to the filing of CA (IB) No. 1134/KB/2018, the respondent filed a title suit being TS No. 1539/2018....

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....Ltd. filed an application under Sec. 10 of I & B Code, 2016 which was admitted vide order dated 18/1/2017 and in the absence of resolution plan, Nicco Corporation Ltd. was ordered to be in liquidation vide order dated 17/10/2017. The liquidator having taken note of the tenants in occupation of the building, has taken steps to initiate sale proceedings and since the liquidator failed in getting prospective buyers because of the tenant in possession of the premises which is the subject matter of dispute in the case in hand, filed this application for passing an order of eviction on the strength of an agreement dated 30/11/2017. By an agreement dated 30/11/2017, the respondent has been granted right to use and possess 17500 square feet on first floor of the premises belonging to Nicco Corporate Ltd. which is under liquidation process. Execution of the above said agreement is not at all in dispute. 8. Ld. Sr. Counsel appearing for the liquidator has submitted that the respondent herein is not a lessee but a licensee and was in possession of the premises license to the respondent ad measuring 17500 square feet for a period of 11 months and immediately after the lease and license agre....

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....f licence agreement was for 11 months and that period expired on 31/10/2018. Therefore, possession continued by the respondent as per the terms of leave and license agreement became unauthorised. The question is, therefore, whether an unauthorised occupant is ordered to be evicted. Our answer is that the respondent being a licensee being bound by the terms of the license agreement, is bound to vacate unless the license agreement is renewed. The question whether the respondent is a licensee or lessee has not at all arisen for consideration in the nature of facts brought to our notice in the case in hand. Pendency of Title Suit is also not a bar to exercise the power of the AA under Sec. 35(1) and 65(5) of the I & B Code, 2016. According to the Ld. Sr. Counsel for the liquidator, the respondent has no other right than the right under the terms of contract admitted entered into between the liquidator and the respondent, and since the premises were given on leave and license, the respondent being a licensee has to vacate. 11. At this juncture Ld. Sr. Counsel for the respondent submits that there is nothing to prevent the liquidator to initiate the liquidation proceedings with the en....

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....e expiry of the period of user permitted to posses. Despite termination of licensee, he continues to be in possession, therefore, no doubt it is an unlawful possession liable to be evicted by the liquidator. 13. Ld. Sr. Counsel appearing for the respondent at this juncture referred to the judgment of NCLT II, Kolkata Bench, in CP (IB) No. 508/KB/2018 in the case of Small Industries Development Bank of India vs. Tirupati Jute Industries Limited, an order of Appellate Tribunal in Company Appeal (AT) (Insolvency) No. 304/2018 in the case of Raj Builders vs. Raj Oil Limited and Anr. and (iii) In the Supreme Court of India in Civil Appeal No. 9170 of 2019 in the case of Embassy Property Developments Pvt. Ltd. vs. State of Karnataka & Ors. We have gone through the above referred judgments. The facts in issue is not at all similar to the facts in the case in hand, and, therefore, it appears to us that the said citation in no way help the respondent to hold that this AA has no power to order eviction in the particular set of facts in the case in hand. 14. On the other hand, Ld. Sr. Counsel appearing for the liquidator also refers to various citation so as to stress his argument that ....

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.... one of the conditions of agreement which is bound to obey by the respondent. In Smt. Puspha Devi Jhunjhunwala case (supra), the Hon'ble High Court in a winding up proceedings observed that a company court can pass an order of eviction. So bearing in mind the legal proposition brought to our notice, we are of the considered view that a proceedings of this nature wherein a person is in occupation of the premises of a corporate debtor company undergoing liquidation is continuing the occupation unauthorisidly, this unauthorised occupation is to be ordered to evict. The eviction can be passed in the nature of case in hand. 17. The liquidator is obliged to get maximization of the assets by selling the property at the highest price and, therefore, in view of the contract between the parties and admission of the respondent that they would vacate the premises on the expiry of license or whenever required, even as per the terms of the agreement, the respondent company is bound to vacate. To stress the above said view of the Ld. Sr. Counsel appearing for the liquidator he relied upon a letter addressed to the liquidator dated 6/2/2019 by the authorised representative of the respondent....