- (1.) IN terms of the order of the Division Bench dated 13 March 2008, the trial on evidence was held primarily for deciding or answering the issues framed by the Bench and the respective witnesses of Tivoli Park Apartments Private Limited (Tivoli, in short) and Wellman Wacoma Limited (Wacoma, in short) gave evidence in Court before me.
(2.) THE witnesses of Wacoma gave evidence as Wacoma was permitted to do though on earlier occasion Wacoma did not, in fact, want to give or lead any evidence after the proceedings or rather Section 446 proceedings initiated by Wacoma and the suit instituted by it were dismissed by me for non-prosecution on the invitation of Wacoma. Thus before proceeding further it would, I find, be convenient to set out the above issues as framed by the Division Bench. 1. (a) whether the tenancy of Wellman Incandescent (India) Ltd. (Now in Liquidation) under Tivoli Park Apartment Pvt. Ltd. was terminated by surrender or otherwise? (b) if so, i) How was the tenancy terminated? ii ) When was such tenancy terminated? 2. (a) Whether there was any creation of a new tenancy by Tivoli Park Apartment Pvt. Ltd. in favour of Wellman Wacoma Ltd.? (b) if so, i) How was such tenancy created? ii) When was such tenancy created? It should, however, be pointed out at this stage that the above issues were framed by the Division Bench on the basis of the pleadings of the parties in their respective proceedings, namely Tivolis disclaimer application, C.A. No. 302 of 2006, Wacomas inter alia Section 446 application of the Companies Act and the affidavits used by the parties including the Official Liquidator. Although Wacoma wanted me to frame an additional issue, the prayer of Wacoma was refused on 15 January 2010 and the appeal against the said refusal by Wacoma was also dismissed by the Division Bench of this Court by its order dated 9 February 2010.
(3.) BEFORE, however, I deal with the respective cases of Tivoli, Wacoma and the Official Liquidator as made out in their respective pleadings and as sought to be established by Tivoli and Wacoma on evidence, I need to say a word or two on the above issues as the Division Bench by its said order made it very clear that the trial on evidence was to be held for deciding the above issues. The said order of the Division Bench as known to all concerned became final as the proceedings initiated thereafter by Wacoma for adding further issues or rather an additional issue eventually failed, as aforesaid, and consequently trial took place to decide the above issues and no other issue or issues. On a plain reading of the first issue it is clear that the parties to the proceedings, namely Tivoli, Wacoma and the Official Liquidator recognized that Wellman Incandescent (India) Limited (Incandescent, in short) (now in liquidation) was in fact the tenant of Tivoli but as Wacoma claimed that Wacoma became the tenant, or rather a new tenancy was created in Wacomas favour by Tivoli before Incandescent had gone into liquidation, the Division Bench was pleased to frame the first issue for a decision whether such tenancy of Incandescent under Tivoli was terminated by surrender or otherwise. And, if this issue is answered in the affirmative, namely that such tenancy was, in fact, terminated before Incandescents liquidation, then it is to be decided how such tenancy was terminated, namely in what manner and the time as to its termination.;