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2023 (2) TMI 330 - HC - Companies LawAuction purchase - Seeking direction that the Official Liquidator to remove encroachment from the leasehold land of the company - permission / to take leave of this Court under section 446 of the Companies Act, 1956, not done - in absence of due permission taken from this Court under the provisions of section 446 of the Companies Act, 1956, the decree passed by the Small Cause Court in Rent Suit No. 211 of 1991 is required to be set aside - respondent submitted that the present application has been rejected on the ground of delay and latches. HELD THAT:- In view of this Court it was incumbent for the respondents herein to take permission / to take leave of this Court under section 446 of the Companies Act, 1956 before proceeding with i.e, the Rent Suit no. 372 of 1988 and Civil Misc. Application No. 26 of 2008 for restoration of the Rent Suit No. 211 of 1991. The respondents herein have accepted the fact that no permission has been sought for from this Court, inspite of the order passed by this Court dated 06.08.2009, wherein it was categorically stated that if the respondents were to continue with the above referred proceedings then leave of this Court i.e, the Company Court was required. That the Official Liquidator was to be joined as party in the aforesaid proceedings. And only thereafter, the orders passed in the aforesaid proceedings can be enforced by the respective respondents. It is pertinent to refer the ratio laid down by the Apex Court in the case of HARIHAR NATH VERSUS STATE BANK OF INDIA [2006 (4) TMI 253 - SUPREME COURT] where the Supreme Court held that, the leave under section 446 of the 1956 Act, is required to be taken. Such leave can be obtained even after initiation of the proceedings. In absence of leave the proceedings cannot be recorded as to have been instituted on the date till leave is obtained. The proceedings can be validated only after the leave from the court is obtained. The award passed in Rent Suit No. 372 of 1988 dated 15.01.2015 and also the Judgment passed in Civil Misc. Application No.26 of 2008 on 31.03.2017 below Ex.5 and on 04.12.1999 passed in Rent Suit No.211 of 1991 cannot be executed till the provisions of Section 446 of the Companies Act, 1966 are complied with - Application allowed.
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