Vijender Jain, C.J. - (1.) THE appellants herein impugn the order, dated 24.8.2006, passed by the learned Company Judge, whereby an application, filed for payment of rent/mesne profits, due to the appellants, by according priority, in payment of payment, has been dismissed. In short, the appellants prayed, before the learned company Judge, that as the amounts, due to them, formed part of liquidation expenses, they were entitled to priority in payments. The appellants have also impugned the order, dated 12.10.2006, whereby an application for review was dismissed.
(2.) THE appellants are the owners/land -lords of premises bearing No. 13D, Atma Ram House, 1 Tolstoy Marg, New Delhi. M/s Shree Bhawani Cotton Mills and Industries (company in liquidation) was a tenant in the aforementioned premises at a monthly rent of Rs. 3854.42. On 17.7.1989, the appellants served a legal notice by registered AD, upon the company, terminating its tenancy and calling upon it to hand over vacant peaceful possession of the tenanted premises by the mid night of 31.8.1989. Despite the termination of the lease, the company did not hand over vacant possession of the premises. The appellants, therefore, filed suit No. 982 of 1993, in the Court of Additional District Judge, Delhi. During the pendency of the aforementioned suit, the company was ordered to be wound up, vide order of this Court, dated 15.7.1999, passed in C.P. No. 121 of 1998. The appellants thereafter filed an application praying for liberty to proceed with the suit. Vide order, dated 12.5.2000, the learned Company Court allowed the said application. On 8.3.2001, the Additional District Judge, Delhi decreed the suit and passed a decree for possession and mesne profits @ Rs. 25,000/ - per month w.e.f. 1.10.1989. On 26.4.2001, the appellants filed C.P. 68 of 2001 for execution of the decree. On 17.8.2001, the official liquidator prayed that time be granted to enable sale of the assets of the company, where after, possession of the premises would be delivered to the appellants. Paragraph 2 of the reply, filed by the official liquidator, reads as follows: That the respondent company M/s Shree Bhawani Cotton Mills and Industries Limited (now in liquidation) was maintaining its corporate office in the premises in question i.e. Flat No. 13D, Atma Ram House, 1 Tolstoy Marg, New Delhi -110001. A large number of assets of the aforesaid company are lying at the premises and inventory regarding the same was duly made on 30.8.2000 in the presence of the representatives of the secured creditors and the ex -director of the Company. A copy of the inventory is annexed herewith as Annexure R -1. In the circumstances, it is submitted that until the assets of the company are sold in accordance with law, it is not possible for the official liquidator to hand over the possession of the premises. The official liquidator has no other suitable premises where the goods can be kept and put to sale. In case the possession is handed over now, the assets lying in the premises will go waste or their value will be seriously impaired. Therefore, it is submitted for the kind consideration of this Hon'ble Court that the official liquidator can only vacate the premises after the sale has been carried out. Alternatively, the plaintiffs or their successors may offer to purchase the articles lying in the premises after the same are got valued through an approved valuer, in order that the interests of the creditors of the company in liquidation are not harmed. The learned Company Court granted four months time to the official liquidator to sell the assets of the company. On 15.12.2001, the assets, lying in the tenanted premises, were auctioned for a sum of Rs. 52,300/ -. On 29.12.2001, the official liquidator informed the learned Company Court that the premises had been vacated and vide order of even date, the official liquidator was directed to hand over vacant possession of the premises to the appellants. Vacant possession was handed over to the appellants on 29.12.2001.
(3.) ON 17.8.2002, C.A. No. 660 of 2002 was filed by the appellants inter -alia pleading therein that as the tenanted premises were occupied by the official liquidator to store assets of the company including the record so as to facilitate the sale of the company's assets, therefore, the sum of Rs. 25,000/ - per month payable from 15.7.1999 to 29.12.2001, partakes the nature of liquidation expenses, in terms of Section 530(6) of the Companies Act 1956 (for short herein after referred to as "the Act") and should be paid to the appellants, by assigning priority over and above the other creditors.;