Sanjib Banerjee, J. - (1.) THIS application was earlier dismissed and the appeal therefrom was disposed of in November 2004, effectively rejecting the reliefs sought, but sugar -coating the dismissal by providing manifold increase in the lease rental in respect of the concerned premises. The alleged mortgagee, claiming that it had been left in the lurch, sought review of the appellate order. In the review the lessor asserted its right to the land. The review was allowed and the earlier order of dismissal was set aside. The applicant now insists upon having the land and claims that the alleged mortgage has no ground to resist it.
(2.) THE bounds of adjudication in this second round of the proceedings before the company court have been demarcated in the order of February 22, 2006, passed on review: We, therefore, review the order passed by the Division Bench by recalling the same and sending the matter back to the learned trial judge for considering whether on the date of winding up, there was any violation of the terms of the lease at the instance of the lessee and also for deciding whether the mortgage was really created in favour of the present applicant in terms of the indenture of lease by taking consent of the lessor. The learned trial judge will adjudicate those questions and will pass necessary order if it is satisfied that the applicant lessor really determined the lease for violation of terms therein, that such determination was in accordance with law and at the same time will also protect the interest of the mortgagee if the mortgage is created with the consent of lessor in accordance with the tenor of the grant. We make it clear that we have not gone into those questions; the company court will give opportunity to the parties to lead evidence on the aforesaid questions. We, thus, recall the order of the Division Bench dated November 25, 2004, and also set aside the order passed by the learned single judge and remand the matter back to the learned single judge for fresh decision in the light of our observations. (emphasis supplied) The State of West Bengal, in the name of the Governor, granted a lease in respect of land measuring 30, 612 sq. ft. at the Howrah Industrial Estate at Baltikuri in favour of the company long prior to its liquidation for a period of 99 years beginning September 1, 1968, at an annual rent of Rs. 21,627.15 all inclusive. A second lease was made in 1991 for an additional area of 260 sq. ft. for 99 years at a further rent of Rs. 320.60 per year. The material terms of both the indentures of lease are similar except that the applicability of an Act of 1976 that did not exist at the time of the first lease, found express mention in the second.
(3.) IT is the rights of the three principal players against the backdrop of the provisions contained in the West Bengal Government Premises (Tenancy Regulation) Act, 1976, that fall for adjudication in the light of the observations made in the appellate court order of February 22, 2006. Further affidavits have been called for to enable the parties to establish their respective cases. The original application and the affidavits filed prior to the matter being dismissed by the order of April 20, 2004, could not be traced and have been reconstructed. Such reconstructed papers have hardly been referred to and in this fight between the lessor and the alleged mortgagee, where the official liquidator representing the company in liquidation has understandably thrown in his lot with the alleged mortgagee. The affidavits filed in course of this fresh round before the company court have primarily been taken into account.;