Calcutta High Court
Engser Limited vs Bengal Investments Ltd on 13 October, 2015
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
OD-35
CA No. 601 of 2015
CP No. 1137 of 2014
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
IN THE MATTER OF:
ENGSER LIMITED
-AND-
BENGAL INVESTMENTS LTD.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 13th October, 2015.
Appearance:
Mr. M. K. Ghosh, Sr. Adv.
Mr. R. Mitra, Adv.
..for the petitioning creditor
Mr. S. Banerjee, Adv.
Mr. R. Dviwedi, Adv.
Mr. A. Nandi, Adv.
..for the company
Ms. Ruma Sikdar, Adv.
..for Official Liquidator
The Court : The application is by the company under Section 466 of the
Companies Act, 1956 for recalling or permanently staying the order of winding-up
passed on August 27, 2015. The application has been advertised in the same
newspapers wherein the petition was advertised and no creditor other than the
petitioning creditor is represented. The company has carried a demand draft for
Rs.13,36,315/- which is the amount claimed in the statutory notice dated July 25, 2014
issued on behalf of the petitioning creditor to the company. The demand draft has been
handed over to Advocate for the petitioning creditor in Court today.
2
The company was apparently a tenant under an agreement with the
petitioner at a rent of Rs.85,000/- per month together with service tax at the rate of
12.36% at a property in Howrah. By a notice dated March 25, 2014, the lease or
tenancy was terminated by invoking Clause 2 of the lease agreement of July 13, 2012.
Such notice of termination was apparently received by the company on the following day
and the company may have become liable to vacate the premises and deliver possession
thereof by the end of April, 2014.
In the statutory notice, the petitioner, however, claimed lease rent at the
agreed rate till the end of March, 2014 as the petitioner may have been under the
impression that the company's occupation of the premises became unlawful from the
beginning of April, 2014. The amount of Rs.13,36,315/- was claimed thus in the
statutory notice of July 25, 2014:
"a) Lease Rent of Rs.85,000/- along with Service
Tax @ 12.36% from October, 2013 to March, 2014 Rs.5,73,036.00
b) Electricity Charges from August, 2013 to March, 2014 Rs.2,30,469.00
c) Occupation Charges from April, 2014 to July, 2014
@Rs.1,15,600/- Rs.4,62,400.00
d) Interest @ 18% p.a. on Lease Rent for the due amount Rs. 55,482.00
till July, 2014
e) DPS charges & other charges for delay in payment of
Electricity charges till July, 2014 Rs. 14,928.00
-----------------------
Rs.13,36,315.00"
The petition was instituted upon the company failing to make the payment demanded in the statutory notice. By an order dated January 6, 2015, the petitioning creditor was directed to serve the company. The matter appeared after service on February 3, 2015 when the following order was passed:
"The Court: Let the affidavit of service filed in Court today be taken on record.3
"This winding up application is based on a statutory notice dated 25th July, 2014. Upon perusing the averments made in the instant winding up petition as also the statutory notice dated 25th July, 2014, it appears that the petitioner is essentially seeking to invoke this Court's discretionary jurisdiction for the purpose of realisation of monthly rentals, which according to the petitioning creditor, is due and payable by the company. This Court refrains from entertaining the winding up petition since the petitioning creditor can avail of a statutory remedy under the West Bengal Premises Tenancy Act.
"This application, therefore, stands dismissed, subject to the observation made hereinabove."
The order dated February 3, 2015 was carried in appeal and the appeal was allowed on March 11, 2015 with the observation that an unsecured creditor was entitled to file a winding-up petition on the presumption of insolvency upon a statutory notice of demand being served upon the company and such notice not being dealt with, irrespective of the nature of the monetary claim. It was further held that though there may be other modes of redressal for the petitioner's grievance, a winding-up petition would be maintainable. The appellate order admitted the winding-up petition after recording that the company was not represented despite repeated attempts at service.
In view of the order of admission of March 11, 2015, the claim in the statutory notice which was repeated in the petition is deemed to have been accepted.
Since the company did not make payment of the amount claimed in the statutory notice despite the appellate order of March 11, 2015, the petition was advertised and the company was wound up on the ground of its inability to pay its debts on August 27, 2015.
It is at such stage that the company woke up to apply under Section 466 of the Act. The company says that it is not insolvent and is able to pay its debts and it has 4 already paid the amount of Rs.13,36,315/- by way of a demand draft to Advocate for the petitioner in Court today.
The petitioner says that notwithstanding such payment, there is no equity in favour of the company and the company cannot seek to perpetuate its occupation of the property in question, particularly, since the lease agreement of July 13, 2012 has been duly terminated. The petitioner, however, submits that the petitioner will file a suit before the appropriate Court seeking eviction of the company from the premises in question and obtaining possession of the immovable property.
There is a further aspect of the matter which cannot be lost sight of. Though it is true that an order of admission is passed only upon the adjudication of the debt, the order of admission passed by the appellate Court in this case did not refer to the amount claimed or adjudicate thereupon since the company was not represented. The order of admission, therefore, accepted the claim made of Rs.13,36,315/-. The claim of Rs.13,36,315/-, as indicated above, contained several components. To the extent the claim has been accepted by the appellate order of March 11, 2015, it cannot be revisited. However, it will be open to the petitioning creditor to claim mesne profits and other monetary dues in the suit proposed to be instituted by the petitioning creditor apart from the amounts covered by the statutory notice. It is also made clear that the acceptance of the amounts claimed in the statutory notice by the order of admission will not be binding on the Civil Court in respect of the claim on account of mesne profits, if any, and interest and the like that may be made by the petitioning creditor in the proposed suit.
CA No.601 of 2015 is allowed of by permanently staying CP No.1137 of 2014 and the order of winding-up passed on August 27, 2015. 5
The company claims that the petitioner holds a security deposit of Rs.8.10 lakh, which has not been referred to in the statutory notice or otherwise adjudicated upon in course of the present proceedings.
In the event the suit is filed by the petitioning creditor against the company for eviction and mesne profits or the like, it will be open to the company to cite the security deposit apparently held by the petitioning creditor.
The official liquidator will take no further steps in the matter. The official liquidator says that he has not taken possession of any asset of the company. The company will be liable to pay the legal costs incurred by the official liquidator assessed at Rs.5,000/-. Such payment should be made by November 15, 2015.
There will be no further order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp.