Patherya, J.
1. This is an application for a direction upon the official liquidator to disclaim and make over possession of the second floor of premises No. 31, B.B.D. Bagh (South), Kolkata-700 001 to the applicant by removal of padlock.
Petitioner's case:
2. The case of the petitioner is that a tenancy was given to Buxa Dooars Tea Company (India) Ltd. ('Company'). By a notice issued under Section 106 of the Transfer of Property Act, 1882, the tenancy was terminated and C.S. No. 1 of 2005 filed for eviction of the company. A decree for eviction was passed on an application under Chapter XIII-A of the Original Side Rules upon contest and in appeal filed, a conditional order of stay was granted. During the subsistence of the appeal the order of winding up dated March 1, 2006, was passed on the application of a petitioning creditor and the official liquidator took possession of the said tenanted office space. Although directions were given to the official liquidator to shift the goods from the tenanted office space to a godown to be provided by the applicant, the same was not found to be suitable and therefore the goods have not been removed.
3. The proposed scheme is in respect of two tea gardens and not the tenanted office space. Neither the official liquidator nor the company (in liquidation) has any need of the said tenanted office space and therefore the tenancy be disclaimed as sought for in this application.
4. The said relief has been sought in view of Section 535(1)(a) and more particularly Section 535(1)(c) of the Companies Act, 1956. The official liquidator being an officer of the court should hand over possession as has been held in Ravindra Ishwardas Sethna v. Official Liquidator, High Court, Bombay : [1983]3SCR657 .
5. In the case reported in Ashoka Steel Corporation Pvt. Ltd. v. Official Liquidator, High Court at Calcutta [1999] 2 CLJ 491 disclaimer was allowed as the lease had expired so also in the instant case the relief be granted. Reliance has been placed on Bhagwati Prasad v. Chandramaul : [1966]2SCR286 , for the proposition that the petitioner is entitled to mesne profit and the suit in respect thereof is pending.
6. The tenanted office space is onerous to the company (in liquidation) as it is incurring liability month by month, which is not being honoured by payment.
7. For the winding up of the company (in liquidation) books, records, papers and documents will only be required by the official liquidator and not the tenanted office space.
8. Although the order for providing a godown space and valuation of the assets was passed on May 15, 2006, no step has been taken to act thereon.
9. The winding up order was passed in the absence of the company on March 1, 2006, and therefore it can be presumed that the company allowed the said order to be passed.
10. Shareholders/contributory:
Section 535 has no application in the instant case as the said is to apply to a property of the company (in liquidation) and the said section cannot be used for execution of a decree.
11. Section 458 empowers the official liquidator to exercise powers under Section 457(1) and the petitioner in paragraph 10 of its affidavit, in support of judge's summons, has stated that on the date when the official liquidator took possession of the assets of the company (in liquidation), the company had no right, title and interest therein. Therefore, no order can be passed on this application. Reliance has been placed on a decision reported in Smt. Nirmala R. Bafna v. Khandesh Spinning and Weaving Mills Co. Ltd. : [1992]1SCR985b .
Official liquidator:
12. The application filed is for disclaimer of the tenanted office space wherein moveable assets of the company (in liquidation) are lying and unless the same is sold the tenancy cannot be handed over to the applicant. Reliance has been placed on a decision reported in Board of Trustees, Port of Kolkata In re [2004] 119 Comp Cas 637 (Gauhati) and United Bank of India v. Official Liquidator [1994] 79 Comp Cas 262 (SC). As long as the same is not in the interest of the creditors it is not an onerous covenant and no order ought to be passed.
Conclusion:
13. Having heard the submission of the parties no order is passed on the said application for the following reasons.
The notice of termination was given on October 12, 2004, by the appli cant to the company, i.e., prior to the order of winding up on March 1, 2006.
In paragraphs 7 and 8 of the plaint, filed in C. S. 1 of 2005 the applicant has pleaded severance of the landlord tenant relationship. A decree has also been passed on January 13, 2005. Both the suit and the decree have been filed and passed respectively prior to the order of winding up.
The applicant has chosen one course of action and should pursue the same by filing an application for execution of the decree.
14. The petitioner has taken advantage of the decree as sums payable after the passing of the decree till February, 2006, has been accepted. Having acted upon the decree the petitioner cannot be allowed to take recourse to another course of action, viz., disclaimer.
By filing an application under Section 535 the petitioner intends to nullify the decree passed. This cannot be allowed.
The company has gone into liquidation subsequently and the applicant cannot be allowed to take advantage of the said liquidation proceedings by filing a disclaimer application when it has acted pursuant to the decree.
For all the aforesaid reasons the application is dismissed.