TMI Blog2019 (4) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... mission that notices issued prior thereto by the office, addressed to applicant at his address of the flat, went unserved. As such the application for, inter alia, recall of order dated 5th May, 2017 is allowed in part as the order was obtained exparte and there appears error of fact apparent on face of it, the flat being occupied and not locked. However, as aforesaid, applicant having had thereafter relinquished possession, other prayers in the application cannot be granted. - CA No.325 of 2017 With CP No.245 of 1985 And CA No.286 of 2017 - - - Dated:- 28-3-2019 - MR ARINDAM SINHA, J. For The Applicant : Mr. Prantik Garai, Adv. And Ms.S. Fasih, Adv. For The Official Liquidator : Mr. Ronojit Chowdhury, Adv. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on retirement, the flat would be conveyed to his client at reasonable consideration to be paid out of his retiral benefits. Consideration was paid, only transfer document remained to be executed. Unfortunately, the company went into liquidation. His client continued to reside in the flat and applied for membership with the cooperative society of the apartment, in which the flat is situate. According to him, pursuant to order dated 5th May, 2017, Official Liquidator took possession of the flat. His client having had obtained membership of the cooperative, said order should be recalled and other prayers made in the Judge s Summons, allowed. On query from Court regarding his client having had possession of the flat and notice of ongoing liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciety that in case the company, now in liquidation, either claims the flat or raises objection for transfer of it in favour of applicant, he shall bear all legal expenses for contesting claim of the party. Applicant is out of possession. If this membership, on having furnished indemnity to effect recorded above, gives him title to the flat, applicant must have adjudication on such claim of title before he can claim possession, he having given it away on an order made for breaking open lock and seal in the flat. The order, recall of which has been prayed, did not direct forceful eviction as made in execution proceeding. It was made on a letter for direction . The order gave permission to Official Liquidator to take possession of the flat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . So far as sanction under section 457 is concerned, there is no provision for Official Liquidator to obtain sanction to take possession of property of company in liquidation upon evicting occupant therein. Sub-sections (6) and (7) in section 477 provide for Court to order a person suspected of being in possession of property belonging to a company in liquidation, upon him being examined , to deliver the same to Official Liquidator and execution of such order is to be in same manner as a decree for delivery of property under Code of Civil Procedure, 1908 . Supreme Court in Raptakos Brett Co. Ltd. vs. Ganesh Property reported in (1998) 7 SCC 184 as also AIR 1998 SC 3085 said, inter alia, In view of the aforesaid settled l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession was given in the Chamber of the Hon ble Company Judge on the basis of a letter for direction, a copy of which was never served on the applicant. .. The feeble argument of Mr. Saha that the applicant had acquired title by adverse possession is legally unsustainable. The ingredients of ownership by adverse possession are wholly absent. The applicant was, as officer of the company permitted to use and occupy the said flat as part of his perquisites. Admittedly, after his retirement, various eviction proceedings were instituted, during the pendency whereof the company was directed to be wound up. The proceedings were pending when the order of winding up was passed and could not have been disposed of without leave of Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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