TaxTMI 
TaxTMI 
2009 (9) TMI 1093
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....Ahmedabad, known as Saraspur unit. In the affidavit in support of the Judge's Summons, it has been stated by the applicant that the applicant has preferred Company Application No. 286 of 2005 before this Court for the appropriate relief to accept the offer of the applicant for Rs. 500/- per Sq. Mtr. of the land including the movables and immovable. To say in other words, the applicant is one of the offerers for the property in question who is desirous to purchase the property from the company in liquidation and has submitted the offer. Therefore, it is desirous to see that the properties of the company are sold by the sale committee or the Official Liquidator, as the case may be, at the earliest. 3. Company Application No. 370 of 2006 has been preferred by three persons viz. Mrs. Uttra Achyut Chinubhai, Aneesh Achyut Chinubhai and Mrs. Meera Kirtidev Chinubhai through their constituted power of attorney Achyut Chinubhai in capacity as the successor owner of the property seeking direction of this Court to Official Liquidator to handover the clear and vacant possession of the mill premises, which as per the applicant, is not required for efficiently carrying on winding up proceedi....
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....e said application were virtually the same as prayed in the present application. In the very order this Court inter alia observed at para 3, 4, 5 and 6 as under: "3. This Court has passed an order on 12.8.2004 in Company Petition No.2 of 1998 and other cognate matters which inter alia includes Company Petition No.65 of 1998. By virtue of the said order the Company, namely, M/s. Nanikram Shobraj Mills was ordered to be wound up. Company Petition No.2 of 1998 was registered on the basis of the opinion forwarded by the BIFR for winding up of the Company. While disposing of the Company Petition No.65 of 1998 this Court has observed that since the Company Petition No.2 of 1998 is allowed and final winding up order is passed, the Company Petition Nos.65 of 1998, 210 of 1998 and 9 of 1998 are also deemed to have been allowed and winding up order is also deemed to have been passed in these petitions. It is true that the present applicants / original petitioners in Company Petition No.65 of 1998 have made several prayers. These prayers are as under :- "(A) Be pleased to admit this petition; (B) Be pleased to pass order for winding up of the Nanikram Sobhraj Mills ....
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....any Petition No.65 of 1998. Even otherwise, once the winding up order is passed this prayer cannot be entertained in winding up petition. It is always open for the applicant / original petitioner to initiate separate proceeding for seeking other reliefs either by lodging claim before the Official Liquidator or by filing separate application before this Court. In any case it cannot be made the subject matter of review nor such relief can be granted in an application for review. 5. In above view of the matter, the Court is of the opinion that the relief which is sought for in the present application is out side the scope of the review as in the main petition also those prayers were neither considered nor granted. It is clear from the earlier order that by virtue of the winding up order passed in the main petition, no order was invited for other prayers. The applicants can therefore move separate application for these reliefs. 6. Subject to the aforesaid clarification and observation this application is accordingly disposed of." 7. The relevant aspect is that prior to preferring of the Company Application No. 249 of 2006, the applicant of Company Application No. 3....
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....d 8th May 1938 goes to show that the company in liquidation is put into the possession of the property under the agreement of lease entered into by Shri Chinubhai Madhavlal and the lease agreement was for a fixed period of 10 years. It further appears by supplementary agreement of lease dated 15.12.1939 that the additional area was also given on lease and the additional monthly rent was fixed. (3) The period of lease has expired in any case on 15.12.1949. (4) In the statement of affairs filed before the Official Liquidator the present property is not shown as that of the company in liquidation. 11. In view of the aforesaid, it can be said that the company in liquidation has continued to occupy the property after the expiry of the period of lease agreement. Mr. Pandya, learned counsel appearing for the applicant during the curse of the hearing wanted to rely upon the document dated 20.10.1942 entered into between the company in liquidation and the Managing Trustee of the owner Shri Chinubhai Madhavlal and others Trust for contending that thereafter the tenancy was renewed at the rate of Rs.770/- per month + Rs. 20/- as the water charges on month to month basis f....
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....ory tenant, it is entitled to occupy the property so long as it complies with all terms and conditions of the statute. Section 12 of the Rent Act puts an embargo upon the rights of the landlord to recover the possession so long as the tenant has paid and is ready and willing to pay the amount of standard rent or permitted increase and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of the Act. Therefore, a statutory tenant would be entitled to continue to occupy the property so long as is ready and willing to pay the rent and permitted increase and complies with the other conditions consistent with the provisions of the Act. Therefore, if the company in liquidation may be through Official Liquidator, if desirous to continue the occupation over the property, it can, but the requirement would be to pay the amount of rent and the permitted increase and to observe the other terms of the tenancy consistent with the provisions of the Act. Hence, the Official Liquidator, if desirous to continue the occupation of the property, he will have to abide by the conditions for payment of the rent. In the event the rent is not paid, t....
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....ion of any other statute apart from the Rent Act, such right is not affected by the provisions of the Rent Act and even if there might be a situation where some conditions stipulated in a provision of Rent Act come to be satisfied, the tenant would yet be entitled to resist the claim of landlord for possession of the premises, if otherwise entitled to dehors the provisions of the Rent Act. A tenant needs no protection against eviction by the landlord so long as he has necessary protection under the terms of the contract entered into with the landlord. A tenant's right to hold over after the termination of the contractual tenancy is different from the right to protection during the contractual tenancy and the two rights must be kept distinct from each other. In case of the former right provisions of the Rent Act come into play, while in case of the later right, ordinary law governing the rights of the tenant and landlord would become applicable. 23. It is settled law that the period of a subsisting lease cannot be curtailed in absence of a forfeiture clause in the lease deed. The contractual tenancy would thus subsist as governed by provisions of the T.P. Act and there ....
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.... than or in addition to the grounds enumerated in sub-sec.(1) of Sec.13 of the Bombay Rent Act shall remain inoperative during subsistence of the lease and even after expiry of the lease term. (iii) The proceedings for eviction of a tenant under the fixed term contractual lease can be initiated during subsistence or currency of the lease only on a ground as may be enumerated in sub-sec. (1) of Sec.13 of the Bombay Rent Act provided it is also enumerated as one of the grounds for forfeiture of the lease rights in the lease-deed, but not otherwise. (iv) The period of fixed term lease of 199 years is ensured and remains protected except in the cases indicated in (iii) hereinabove, and during this period, the rights of the lessee under the lease-deed and the Transfer of Property Act are not curtailed by the provisions of the Bombay Rent Act." 19. The aforesaid goes to show that as the period of lease in the present case has admittedly expired and the occupation is continued by the company in liquidation thereafter which can be termed as that of by way of a statutory tenant, the rights of the company in liquidation as well as the rights of the owner shall stand gove....
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.... 23. Therefore, unless such is permitted by the notification of the State Government, it is not lawful for the tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. 24. The notifications of the Gujarat Government dated 28.4.1969 and 7.12.1972 issued for permitting transfer under Section 15 read as under: "Notifications u/s 15(1) Proviso Premitted Transfers No.GHJ-222/BRA-1067-A dated 28th April, 1969 - In exercise of the powers conferred by the proviso to Section 15 of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (Bom. LVII of 1947), the Government of Gujarat, hereby permits in all the Saurashtra and Kutch areas of the State to which Part II of the said Act extends, all transfers and assignments by lessees of their interests in leasehold premises as and to the extent specified in the schedule annexed hereto. Schedule 1. Transfer or assignment on (i) or (ii) sale or (iii) mortgage without possession, by lessees holding building sites under leases the unexpired period of which exceeds 5 years on 31st December, 1963 provided such transfer is of the entire int....
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....Act, 1951 (Act 68 of 1951) thereinafter referred to as the "said Act") or the Bombay State Aid to Small Scale and Cottage Industries Rules, 1935, issued as an accompaniment to the Bombay Govt. Resolution. Development Department No.SAI-1454 dt. 28th Feb. 1955, from or through the Financial Corporation established under the said Act, in favour of such Financial Corporation or the State Govt. as the case may be, for securing any such loans, advances, or other financial assistance, and (2) transfer or assignment by such Financial Corporation or Stae Govt, as the case may be, of said premises transferred or assigned to it. Explanation:- For the purpose of this notification, the expression "industrial concern" shall have the same meaning as assigned to it in the said Act. " 25. The aforesaid shows that if the transfer is on account of the sale of the business as on going concern, such is permitted. In the present case as the company is closed since 1995 and has discontinued its business activities, the question of transferring the business would not arise. It is an admitted position that the Official Liquidator is holding the property in the process of winding up sin....
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....s when the property was given on lease basis and as such a detailed inquiry may be required to be undertaken for such purpose and until that question is finalized and the OL is allowed to realise the value of such material, if any, for which investment was made by the company in liquidation, the OL would be justified in retaining the property in capacity as the statutory tenant. However, at this stage, Mr.Pandya, learned Counsel for the applicant, declared under the instructions of his client, that as per the conditions of the lease agreement no additional construction was permitted and he also stated at the bar that at one point of time when the company wanted to make construction, the suit was filed and injunction was granted by the Court and, therefore, he submitted that the constructions were all in existence as per the applicant. He also stated that if the OL is desirous to sell the superstructure over the land and appropriate the money for winding up of the company in liquidation the applicant has no objection for such purpose, provided the OL thereafter surrenders the vacant land to the applicant. He also submitted that as per the conditions of the lease deed, there is liabi....
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....nt as that of the owner of the property is not proved, therefore, this Court may not direct the OL to hand over the possession of the property to the applicant. It was submitted that the lease agreement was entered into by different parties and the applicant is a different party and, therefore, since the status of the applicant as the owner of the property is not proved, the direction may not be issued by this Court to hand over the possession of the property to the applicant even if this Court finds that there is no salable interest in the property of the company in liquidation and the OL after sale of the super-structure would not require further retention of the property, since huge expenses are likely to be incurred for preservation of the property. 29. The learned Counsel for the applicant in support of the claim of ownership had relied upon the decision of this Court in the case of Minor Anish Achyut Chinubhai v. M/s. Nanikram Sobhraj Mills Pvt. Ltd., reported in 1992(2) GLR, 1133 and it was contended that in the said suit, at that time also, the company did not challenge the title of the owner Minor Anish Achyut Chinubhai and Others and it was further contended that if th....
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....d are sold. Thereafter, the occupation over the land by the OL would not be required for the winding up of the company. The aforesaid is coupled with the circumstances that preservation and protection of the property itself is incurring and is to incur huge expenses to the company in liquidation. 32. Under these circumstances, the following directions:- (a) The OL shall undertake the exercise for sale of the super-structure over the land on the premise that the same belongs to the company in liquidation on 'as is where is and whatever is there' basis, by getting valuation fixed by convening the meeting of the Sale Committee already constituted for the company in liquidation. The process of convening the meeting, advertisement and inviting offer and finalization of the offer shall be completed preferably within a period of three months from the date of receipt of the order of this Court. The report shall be submitted to this Court for confirmation of the sale within two weeks from the finalization of the proceedings by the Sale Committee. The question of finalization of the sale shall preferably be concluded within four weeks from the date of the submission of th....