- (1.) THIS appeal has been filed challenging the order of the Trial Court dated 7th August, 2007 in C. A. No. 366 of 2006 in C. P. No. 162 of 2003 (Buxa Dooars Tea Company (India) Limited v. Hongkong and Shanghai Banking Corporation Limited. ).
(2.) THE case of the petitioner/appellant is that it is the owner of premises No. 31 B. B. D Bagh (South), Kolkata -. 700 001. One Buxa Dooars tea Company (India) Limited in liquidation (hereinafter referred to as the Company (in liquidation) since about 1978 was a tenant under the petitioner in respect of an air-conditioned office area measuring about 7031 sq. ft. on the second floor of the premises owned by the appellant. The Company (in liquidation) stopped paying rent to the petitioner in or about 1990. Therefore, an eviction suit had been filed against the company (in liquidation) in the year 1990. The suit was, however, dismissed for default. Thereafter, the appellant, as the owner of the premises, again served a notice dated 12th January, 2004 on the company (in liquidation), inter alia, terminating their tenancy in respect of the premises under section 106 of the Transfer of Property Act, requiring the Company (in liquidation) to give up vacant and peaceful possession of the premises to the appellant. The Company failed to comply with the notice. Therefore, the appellant again filed a civil suit being C. S. No. 1 of 2005 in this Court seeking a decree for eviction of the Company (in liquidation) from the said premises, mesne profits and other reliefs. The suit was decreed in terms of prayer 'a' of the Master summons taken out on behalf of the appellant (plaintiff) dated 10th march, 2005. The Company (in liquidation) filed an appeal from the aforesaid order decree dated 13th September, 2005. The Appeal Court passed a conditional stay order dated 20th December, 2005 directing the Company (in liquidation) to pay at the rate of Rs. 20 per sq. ft. for an area of 7013 sq. ft. per month until the appeal was heard and disposed of. The payment was directed to be made from the date of the decree, i. e. October 2005. It was also directed that in delault of payment of the amount, the stay granted will be automatically vacated. In terms of the aforesaid order, the Company (in liquidation) paid the initial aggregate amount of Rs. 5,62,480/- on 14th January, 2006 being the rent for the month of October, 2005 to January, 2006 at the rate of Rs. 1,40,620/-and a further monthly payment of Rs. 1,40,620/- on 15th February, 2006. Thereafter, the Company (in liquidation) defaulted in making payment in terms of the conditional stay order and the decree dated 13th september became executable. The fact of such default is recorded in the letter of the Advocate-on-Record of the appellant dated 3rd April, 2006. By order dated 17th August, 2007 the appeal itself was dismissed. It appears that the Company Petition No. 162 of 2003 was filed seeking winding up of the Company (in liquidation ). By order dated 1st March, 2006 the Company Court passed the winding up order and the Official liquidator was directed to forthwith take possession of the assets of the company. The appellant came to know about the winding up order on 8th May, 2006. Till then the decree dated 13th September, 2005 had not been executed. The appellant, therefore, served a notice dated 10th may, 2006 on the Official Liquidator pointing out that on default having been committed by the Company (in liquidation) in making payment as directed by the Appeal Court on 20th December, 2005, from the month of March, 2006 the stay order passed by the Appeal Court stood automatically vacated. The appellant, therefore, put the Official liquidator on notice that it had no right to remain in possession of the premises without making payment in terms of the order of the Appeal court dated 20th December, 2005. It was also stated that the occupation charges for the month of March 2006 and April 2006 at the rate of rs. 1,40,620/- per month have already fallen due and the same are payable forthwith. The Official Liquidator was, therefore, asked to hand over vacant possession as well as to make payment of the amounts due.
(3.) RELYING on these facts the appellants had filed C. A. No. 366 of 2006 arising out of C. P. No. 162 of 2003 under section 535 read with section 458 of the Companies Act 1955, with the following prayers: (a) The Official Liquidator be directed to disclaim and make over possession to the appellant of the said premises situated on the second floor of premises No. 31, B. B. D. Bagh (South), Kolkata-700001 more-fully described in annexure "a" to the affidavit in support of the Judges Summons. (b) Injunction restraining the Official Liquidator from using or in any manner dealing with any portion of the said premises, other than handing over the said premises to the applicant, morefully described in annexure "a". (c) Direction upon the Official Liquidator to pay Rs. 1,40,062/- per month on and from March, 2006 in terms of the order of the Hon'ble appeal Court dated 20th December, 2005 till such time as the possession of the said premises is made over to the Applicant; (d) Direction upon the Official Liquidator to forthwith remove his padlock from the entrance of the said premises morefully described in annexure "a" and thereafter not to interfere with the applicant's possession, occupation and user thereof; (e) Ad interim order in terms of prayers above; (f) Such further and/or order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper. ;