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A. Talukdar and Co. (Fertilizer) (P.) Ltd. Versus Official Liquidator, High Court of Calcutta

2016 (9) TMI 168 - SUPREME COURT OF INDIA

Eviction of persons - whether the Company Court could evict persons, who have occupied property of a company after commencement of winding up proceedings, on such company being revived under the order of the Company Court? - Held that:- Once the Company was ordered to be wound up, the assets of the Company came in the custody of the Company Court and no arrangement, after winding up order, without permission of the Company Court could be recognized in respect of assets of the Company. There was .....

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, including the implementation of this order may be raised before the Company Court. - CIVIL APPEAL NOS. 6564 - 6567 OF 2016 - Dated:- 15-7-2016 - V. GOPALA GOWDA AND ADARSH KUMAR GOEL, JJ. For The Petitioner : M.N. Krishnamani, Sr. Adv., Abhijit Sengupta, Dibyadyuti Banerjee, A.V. Manavalam, Avijit Bhattacharjee, Abdhesh Chaudhary, Niendu Vatsyayan and Rajiv Ranjan Dwivedi, Advs. For The Respondent : Arjun Singh Bhati, Arvind K. Gupta, Avijit Bhattacharjee, Ms. Upma Shrivastava, Sudesh B.M., Sa .....

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120 SCL 40 (Mag.) respectively. 2. The question for consideration is whether the Company Court could evict persons, who have occupied property of a company after commencement of winding up proceedings, on such company being revived under the order of the Company Court. 3. The appellant-company was directed to be wound up by order dated 9th November, 1998 in Company Petition No. 12 of 1998 filed by one of its creditors M/s. Indian Potash Limited. The Official Liquidator attached to the High Cour .....

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ders of the company filed an application before the Company Judge for recalling the winding up order. The said application was allowed on 6th September, 2010. It was observed that the amount due was paid to the creditors and there was no objection to the winding up order being recalled. The official liquidator was directed to hand over the possession which was with him vide order dated 20th September, 2010. 5. The Company preferred an appeal seeking direction that the Company Judge should have r .....

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d the possession of the entire property of the company and not merely the property in possession of the official liquidator and three appeals filed up occupants of the premises belonging to the company, claiming the right to continue in possession. The Company Judge found that though M/s. Hindustan Bone Mills, a partnership firm claimed that it was in possession of the part of the premises prior to the Company being sent to liquidation, none of the occupants was in possession prior to commenceme .....

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ho was the tenant of the Company and the official liquidator had accepted this position and could not go back upon this arrangement. 8. The High Court recorded its following finding with regard to the claim of two occupants who had given undertaking to vacate the premises as and when so directed :- 'In our considered view, both the occupants in view of their specific undertaking before the learned Judge would be obliged to honour such undertaking as soon as Official Liquidator was divested o .....

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n invitation to the public. The public would include "Pack Tech" and "Chatterjee Brothers". His Lordship's permission could thus be not construed as a condition upon vacating of the premises in question. We respectfully defer with Mr. Bhattacharya on that score. It would thus take care of the issue relating to Section 536(2).' 9. We did not find any reason to interfere with the above finding and have dismissed the SLP (C) Nos. 33660-33663 of 2012 and SLP (C) Nos.38562 .....

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nary. It is an enabling power without any mandate to the Court. The question would thus remain, whether in the present factual matrix the Court should be bothered with such an adjudication particularly when there was no lis pending before the Company Court as the order of winding up had already been set aside. The occupants came in possession in 2008. The Official Liquidator initially accepted rent, soon declined to accept and categorically denied and disputed the alleged right of the occupants. .....

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ith Ajit Kumar Talukdar who failed to turn up. The Official Liquidator accepted rent from M/s. Hindustan Bone Mills. The relevant Extracted of the Letter for Direction is quoted below:- "This matter has been examined by the Official Liquidator, High Court, Calcutta, it appears that the ex-Directors of the company (in liquidation) have created the tenancy in favour of M/s. Hindustan Bone Mills and issued the alleged receipt dated 5th November, 1998 and the proceedings were commenced on 9th J .....

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der dated June 11, 2010. In view of the change of determination the said Letter for Direction came before another learned Judge on July 16, 2010 when His Lordship did not pass any order in terms of prayer (a). The Official liquidator accepted the said decision and did not proceed further as against the said occupants. Mr. Basak strenuously contended, such position would not per se be fatal for the company. Accordingly to him, the Official Liquidator was in deemed possession of the property in qu .....

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e Mills was nothing but an attempt to stall the winding up proceeding. It was an attempt to resist the Official Liquidator from taking possession of the landed assets, Tapash Talukdar, partner of M/s. Hindustan Bone Mills very recently made application inter alia claiming that the land did not belong to the company in liquidation. Hence, Talukdars were eager to resist sale. They were also trying to dispose it surreptitiously. They were successful to find out someone who could pay off their liabi .....

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red from the scene as his whereabouts were not known at least nobody informed us. We also find that the application for setting aside the order of winding up was filed by Talukdars having Tapash on their side. Hence, if the occupants would say, Talukdars got the share from Ranjit when they paid hefty amount to Ranjit in coming into possession, it could not be brushed aside. Their possession may be illegal. However, the Company Court should not come to the aid of Talukdars invoking the summary po .....

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