- (1.) Tivoli Park, the respondent No. 1 was the owner of a bungalow situated at No. 225 Acharya Jagadish Chandra Bose Road, Calcutta- 700 020. Wellman Incandescent Ltd. (hereinafter referred to as 'Incandescent') was a company incorporated under the provisions of the Companies Act, 1956. In the year 1970 Incandescent became a tenant in respect of bungalow No. 5 measuring about fifteen hundred square feet under Tivoli Park Apartments (P) Ltd. The financial condition of Incandescent became precarious resulting in a BIFR proceeding where it was declared as a "Sick industrial company". By an order dated July 25, 2002 BIFR recommended winding up of Incandescent and this Court ultimately passed an order of winding up vide order dated September 24, 2002. Since then the Official Liquidator would be in deemed possession of all the assets of the company in liquidation including the bungalow in question. According to Tivoli Park, they did not have any information about the BIFR proceeding or the subsequent order of winding up. They were getting rent month by month. They came to know of the order of winding up from an advertisement published by the Official Liquidator in Media inviting offer for sale of the assets of the company in liquidation. They wrote letter to the Official Liquidator on August 22, 2005, asking the Official Liquidator to deliver vacant possession of the premises in question as according to them tenancy stood terminated in view of the order of winding up. The Official Liquidator subsequently contended, he did not take possession of the bungalow. In fact, Official Liquidator did not know of such tenancy as we find from the record. On April 28, 2006 Tivoli Park made an application inter alia praying for disclaimer of the said tenancy under Section 535 of the said Act of 1956. Official Liquidator subsequently decided to take possession of the said bungalow in question and visited the premises on May 5, 2006 when he was resisted by one Suman Basu, claiming to be an Executive of Wellman Wacoma Ltd. (hereinafter referred to as 'Wacoma'), a company claiming to be a tenant of the self-same bungalow. Suman however could not produce any agreement for tenancy or any rent receipt. He supported his act by production of telephone bill, electric bill and Municipal Trade Licence. Wacoma approached the learned Company Judge on May 10, 2006 inter alia praying for an order of restraint on the Official Liquidator from interfering with their possession. Wacoma subsequently filed a suit in the Alipore Court inter alia praying for a declaration that Tivoli Park had no right to obstruct ingress and egress of Wacoma to and from the said premises coupled with prayer for permanent injunction and other reliefs. The learned Judge dismissed both the applications. On an appeal by Tivoli Park, the Division Bench set aside the judgment and order dated September 19, 2007 passed on the disclaimer application and directed the said application to be tried on evidence. The Alipore Court suit was also transferred to this Court. Wacoma subsequently withdrew the said suit and did not proceed further in respect of their prayer made in their application under Section 446. Hence, the only application being the application for disclaimer was heard by the learned Judge by trial on evidence.
(2.) One Kalyan Banerjee adduced evidence on behalf of Wacoma. The matter reached up the Apex Court level on the question of framing of additional issues when the Apex Court directed expeditious disposal of the disclaimer application. His Lordship allowed the application for disclaimer that gave rise to the present appeal.
(3.) From the evidence and the judgment and order of the learned Single Judge it would appear that Wacoma based their claim on a surrender by Incandescent and a fresh tenancy being created in their favour since March 2002. Pertinent to note, the order of winding up was passed in September 2002. In March 2002 admittedly the BIFR proceeding was pending that ultimately culminated in the order of recommendation of winding up. Wacoma relied on receipts for few months to show that Tivoli Park accepted rent from them. The contents of the receipt are extracted below : "Received from M/s Wellman Wacoma Ltd. cheque No.xxx dated xxx for Rs.825.00 drawn on Bank of Baroda, Hazra Road Branch as rent for the month of xxx being bungalow No. 5 Tivoli Park, 225 B A.J.C. Bose Road Kolkata-700 020".;