Bhaskar Bhattacharya, J. - (1.) This is an application for review of the order dated 25th November, 2004 passed by a Division Bench of this Court in A. C. O. No. 73 of 2004 arising out of A.P.O.T. No. 249 of 2004 thereby setting aside an order passed by the Company Court (rejecting an application under section 535 of the Companies Act) and allowing the Official Liquidator to occupy the disputed leasehold interest of the company in liquidation on paying out of the sale proceeds received by him a sum of Rs. 30,000/- a month to the appellant until the Energy Trading Company Ltd., the subsequent purchaser, succeeds in obtaining negotiated terms with the appellant or the land is cleared and the possession thereof is given back to the appellant fully.
(2.) The facts giving rise to filing of the present application may be summed up thus: (a) By an indenture of lease dated 14th February, 1969 between the Governor of the State of West Bengal and the company in liquidation, a 99 years' lease commencing from 1st September, 1968 was executed with an option to the lessee to renew the lease for another 99 years. By another indenture of lease dated 19th February, 1991 the State of West Bengal demised to the company in liquidation an area of 260 sq. ft. at a monthly rental of Rs. 26.72 which would to be reduced to Rs. 8.60 per year after the expiry of 30 years. (b) The said company, viz. Wellman Incandescent Limited had been wound up by an order dated 24th September, 2002 passed by a learned Single Judge in BIFR Case No.55 of 1998 and the Official Liquidator, High Court had been appointed the Liquidator of the said company. (c) After the order of winding up was passed, the West Bengal Small Industries Development Corporation [hereinafter referred to as (WBSIDC)] filed an application under section 535 of the Companies Act, 1956 thereby praying for a direction upon the Official Liquidator to hand over vacant possession of the leasehold interest and alternatively, for a direction upon the Official Liquidator to disclaim possession of the said leasehold interest. The applicant further prayed for direction upon the Official Liquidator to pay off the outstanding dues of Rs. 12,650.65 paise to the WBSIDC. (d) The learned Company Judge rejected such application with the observation that the leasehold interest of the company was an asset of the company and the same had to be taken into account by the Official Liquidator at the time of sale of assets of the company and that the Court had already fixed sale of the entire assets of the Company. (e) Being dissatisfied, the WBSIDC filed an appeal before the Division Bench of this Court and by the order sought to be reviewed, the said Court set aside the order passed by the learned Company Court thereby holding, inter alia, as follows: "There are two courses now open. The first course is the hardline course whereby we would be compelled to ask the Official Liquidator formally to disclaim the tenancy and summarily put the appellant back in possession of the land by removal of all sheds and machinery lying thereon. The other course, a milder one and we hope a reasonable one, which we propose to adopt, would give the parties a little more time to negotiate on a reasonable basis. As such, we allow the Official Liquidator may occupy the premises under the supervision of the Company Court until further orders, but for such occupation from the month of July, 2004 (sale being completed and money paid in or about mid June, 2004) the Official Liquidator will go on paying out of the sale proceeds received by them a sum of Rs. 30,000/- per month to the appellant. This will be paid as expenses in liquidation, which take priority over everything else. This arrangement will continue until N.R.G: Trading order succeeds in obtaining negotiated terms with the appellant or the land is cleared and possession thereof is given back to the appellant fully. The appeal is disposed of on these terms."
(3.) Being dissatisfied, the applicant, namely, Stressed Assets Stabilization Fund has come up with the present application for review of the said order passed by the Division Bench.;