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TMI Blog2024 (7) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Kolkata (hereinafter referred to as "the sub-demised office space") and further to direct the Official Liquidator to hand over possession of the said sub-demised office space to the applicant-IIPL. The other application, bearing CO.APPL. 60/2022, has been instituted under Sections 446(1) and 456(1) of the Act, inter alia praying for peaceful, vacant and khas possession of the sub-demised office space to the applicant from the Official Liquidator, as also, payment of Rs. 99,34,879/- by the Official Liquidator to the applicant on account of lease, rent, electricity and other charges up to 08.05.2012, along with mesne profits payable from 09.05.2012 to the date of delivery of possession. 2. Briefly stated, the sub-demised office space was leased to the respondent/company (in liquidation) - Mahua Media Private Limited, by way of an Indenture of Sub-Lease dated 11.12.2009, executed between the applicant and the company (in liquidation) for a residual period of 90 years with effect from 02.04.2004, commencing from 01.10.2009. Further, by virtue of a Supplementary Indenture of Sub-Lease dated 24.04.2011, the company (in liquidation) was allotted a parking space for twenty (20) road wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceful possession of the office space, and asserting its right to exercise re-entry into the sub-demised office space. 5. Subsequent to the said letter, the applicant issued a statutory notice dated 03.08.2013 under Section 434 of the Act, calling upon the company (in liquidation) to repay the outstanding amount, along with interest @ 18% per annum. The said notice was replied to by the company (in liquidation) through its counsel, vide letter dated 21.08.2013, whereby it was stated that the company had closed its office in October, 2011, and further admitting that it was willing to pay the sum due on account of Lease Rent, Maintenance Charges and Car Parking Charges, however that it would not pay all other charges. Despite the said admission, the company (in liquidation) did not pay any amount to the applicant towards the Lease Rent, Maintenance Charges and Car Parking Charges. Further, on the expiry of the statutory period of three weeks, the company (in liquidation) became liable to be wound up. 6. It is stated on behalf of the applicant that it came to know that against mortgage of the sub-demised office space, the company (in liquidation) secured certain credit limits for wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as its Liquidator, with the direction to take charge and possession of the assets and properties of the said company. By the same order, the winding up petition CO.PET. 45/2014 filed by the applicant was dismissed as withdrawn, with liberty to file a claim in respect of the sub-demised office space before the Official Liquidator. 10. It is stated that the applicant also filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 bearing Arbitration Petition No. 752/2014, and in the said proceedings, the Calcutta High Court referred the matter to arbitration vide order dated 29.06.2015, appointing an arbitrator so as to adjudicate the disputes between the parties pursuant to the Arbitration Agreement constituted within the Indenture for Sub-Lease executed between the parties. However, it is stated that the arbitration proceedings could not proceed subsequent to the winding up order being passed by this Court on 27.02.2017 as also dismissal of its IA No. 1390/2018 vide order dated 28.11.2018 of this Court disallowing permission to proceed with such arbitration. 11. On a perusal of the record, it is borne out from the Status Report filed by the Official Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B in response to the present applications. It is stated therein that these applications, with respect to the sub-demised office space are not maintainable and liable to be dismissed as the premises in respect of which a disclaimer is sought, already stood mortgaged by the company (in liquidation) with PNB, for itself and on behalf of the consortium of banks from which the company (in liquidation) sought certain credit facilities and Term Loans to the tune of Rs. 203.18 crores. It is submitted that in pursuance of availing such credit facilities, the borrower/company (in liquidation) had created a first pari-passu charge in favour of PNB and the consortium of lenders, and said mortgage was confirmed by way of a Letter of Deposit dated 27.03.2010 and submission of the Indenture of Sub-Lease dated 11.12.2009 entered into between the applicant herein and the company (in liquidation). Subsequent thereto, for want of financial discipline in repaying the amount availed by the company (in liquidation), the account of the company was declared as an NPA. Thereafter, since the company (in liquidation) did not approach the Bank after its account was declared as an NPA, the Bank was constrained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect the rights or liabilities of any other person. (3) The [Tribunal] [ Substituted by Act 11 of 2003, Section 95, for " Court" .], before or on granting leave to disclaim, may require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such other order in the matter as the [Tribunal] [ Substituted by Act 11 of 2003, Section 95, for " Court" .] thinks just. (4) The Liquidator shall not be entitled to disclaim any property in any case where an application in writing has been made to him by any person interested in the property requiring him to decide whether he will or will not disclaim, and the Liquidator has not, within a period of twenty-eight days after the receipt of the application or such extended period as may be allowed by the [Tribunal] [ Substituted by Act 11 of 2003, Section 95, for " Court" .], given notice to the applicant that he intends to apply to the [Tribunal] [ Substituted by Act 11 of 2003, Section 95, for " Court" .] for leave to disclaim; and in case the property is a contract, if the Liquidator, after such an application as aforesaid, does not within the said period or extended period discla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date, and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order; and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the [Tribunal] [ Substituted by Act 11 of 2003, Section 95, for " Court" .] shall have power to vest the estate and interest of the company in the property in any person liable, either personally or in a representative character, and either alone or jointly with the company, to perform the lessee's covenants in the lease, freed and discharged from all estates, encumbrances and interests created therein by the company. (7) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of the compensation or damages payable in respect of the injury, and may accordingly prove the amount as a debt in the winding-up. 18. A careful perusal of the aforesaid provision would show that a disclaimer of an "onerous property" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sub-lease created in favour of the company (in liquidation) vide clause (2) under the head "Sub lessor and sub lessee further agreed and covenant with each other" as under : "II. The Sub-Lessee shall have the right to mortgage and/or create a charge in respect of its built up sub-leasehold interest with regard to the said sub-demised space only in favour of any Bank/Financial Institution during the term of this Sub-Lease provided however the mortgagee shall observe and perform covenants, restrictions, stipulations, terms and conditions including payment of various charges of whatsoever nature as stated in this Deed of Sub-Lease and the Sub-Lessor shall not be liable in case of non-payment of any amount borrowed by the Sub-Lessee. 22. A careful perusal of the aforesaid covenant agreed upon between the applicant-IIPL and the company (in liquidation) would show that sub-lessee i.e., the company (in liquidation) had been conferred the right to mortgage and/or create a charge in respect of its built up sub-lease, holding interest only in favour of a bank or financial institution during the tenure of the sub-lease; and it was made clear that it would be subject to the mortgagee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof, the lessor may re-enter 1***; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2 [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in 1 [any of these cases] the lessor or his transferee 2 [gives notice in writing to the lessee of] his intention to determine the lease : of the Transfer of Property Act, 1882 and in that event, the lessee was bound to surrender and place possession of the same back to the lessor in terms of Section 108 (q) 108. Rights and liabilities of lessor and lessee (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property. of the Transfer of Property Act, 1882. 26. The sum and substance of the aforesaid discussion inevitably is answered to the effect that the objections espoused by the objector - PNB to the CO. APPLs. 517/2018 and 60/2022 cannot be sustained in law. The objector-PNB cannot claim right in the property beyond what was available to the company (in liquidation) during the subsistence of the sub-lease rights. In other wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to such terms as the [Tribunal] [ Substituted by Act 11 of 2003, Section 61, for " Court" .] may impose. and 456(1) 456. Custody of company's property .-(1) Where a winding up order has been made or where a provisional Liquidator has been appointed, the Liquidator [or the provisional Liquidator, as the case may be,] shall take into his custody or under his control, all the property, effects and actionable claims to which the company is or appears to be entitled. of the Act on behalf of the applicant-IIPL, wherein the following reliefs are claimed : - (i) The Official Liquidator attached to this Hon"ble Court and appointed as Liquidator of Mahuaa Media Pvt. Ltd. (In Liqn) be directed to restore to the Applicant forthwith peaceful, vacant and khas possession of the sub-demised office space measuring super built up area of 16,527 Sq.ft. on the 15th floor of the building named "Infinity Benchmark" constructed on the demised Plot No.G-1, Block EP & GP, Sector V, Salt Lake Electronics Complex, Kolkata-700091 by removing the padlocks and/ or seals put by him and by Punjab National Bank on the front door of the sub-demised space. (ii) Payment of Rs.99,34,879/- by the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X
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