Calcutta High Court
Shib Sankar Dey vs Amit Dutta & Anr on 18 July, 2014
ORDER SHEET
ACO 95/2014
ACO 97/2014
APOT 267/2014
CP 91/1973
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
SHIB SANKAR DEY
Versus
AMIT DUTTA & ANR.
BEFORE:
The Hon'ble MR.JUSTICE BANERJEE, ACTING CHIEF JUSTICE
The Hon'ble JUSTICE ARIJIT BANERJEE
Date : 18th July, 2014.
Mr.Srijib Chakraborty, Advocate
Mr.Soumya Ray, Advocate
for the appellant.
Mr.Dhruba Ghosh, Advocate
for the respondent.
Mrs.Smita Das De, Advocate for the Official Liquidator.
The Court : The appellant would claim, he was in the property since 1987. He would admit, he has been put to possession as licensee by one of the erstwhile directors of the company in liquidation. Pertinent to note, the property would belong to the company that went into liquidation in 1974. The learned Counsel in his usual fairness would admit, he never paid any occupational charge to the Official Liquidator except for last two months pursuant to the order 2 of the Court. The learned Judge directed his eviction that the appellant would challenge before us.
This is not the first time we are faced with this particular company in liquidation. Umpteen number of times on one pretext and the other, illegal occupants would approach this Court when Official Liquidator starts taking an active role in removing the trespassers.
Natobar Dutta Properties Private Limited went into liquidation. The company had various immovable properties mostly occupied by the trespassers during the period when Official Liquidator was supposed to be in possession. Earlier, one Division Bench permitted some of the occupants to have permissive use with the undertaking, they would vacate whenever they would be asked.
The matter came up before the Division Bench on several occasions including February 20, 2013 when the Division Bench directed the Official Liquidator to give notice to all the occupants disclosing their status to the Company Court and the Official Liquidator would also make the valuation report available to the learned Company Judge so that His Lordship could fix the proportionate value of the property in occupation of the occupiers. Our endeavour was to give an opportunity to those occupants to get their portion purchased.
We directed the Official Liquidator to take on deposit the proportionate share of the valuation and then permit them to participate in open auction with outsiders and in case any one of them was successful, the Official Liquidator would convey the same in his favour otherwise, he would have to vacate and the 3 Official Liquidator would then refund the deposit made by him. The appellant would admit, he did not participate in such process. He never approached the learned Company Judge. One of the occupants, Amit Kumar Dutta, was successful in purchasing the subject property. It is now the duty of the Official Liquidator to hand over possession to Amit Kumar Dutta. However, stumbling block was the appellant and his brother Tapan Kumar Dey. Tapan Kumar Dey earlier applied for identical relief that the appellant would now seek before us. The learned Company Judge declined. At that stage Tapan Kumar Dey prayed for some time to vacate on the ground of daughter's examination. The present appellant also adopted the same procedure when the learned Judge directed his eviction. He prayed for three months' time to vacate by giving appropriate undertaking. We wonder, how this appeal could be maintainable after such specific undertaking given to the Court.
Mr.Srijib Chakraborty, learned Counsel appearing in support of the appeal would heavily rely upon a Division Bench decision in the case of Vidyadhar Upadhyay Vs. Sree Sree Madan Gopal, reported in Cal. LT. 1988(2) HC 61 and a Single Bench decision in the case of Smt.Pushpa Devi Jhunjhunwalla Vs. The Official Liquidator, High Court, Calcutta, reported in 1993(1) CLJ
447. Mr.Chakraborty would also rely upon a decision of the Division Bench in the case of Wellman Wacoma Ltd. Vs. Tivoli Park Apartments (P) Ltd., reported in 2012(4) CHN (Cal) 645 in which one of us was a party. 4
Relying upon a further decision in the case of P.R. Deshpande Vs. Maruti Balaram Haibatti, reported in (1998) 6 SCC 507, Mr.Chakraborty would submit, the appeal is maintainable in view of Apex Court decision.
In the case of Vidyadhar Upadhyay (supra) the Division Bench observed, the due process of law must be adhered to even if the Official Liquidator would adopt a summary procedure to evict an occupant from a property belonging to the company in liquidation. Mr.Chakraborty would contend, the learned Judge did not place the matter for trial on evidence. The learned Judge did not even permit him to file affidavit on the first day. At the instance of Amit Kumar Dutta, he was asked to vacate the premises in question.
Mr.Dhruba Ghosh, leaned Counsel appearing for Amit Kumar Dutta would contend, the similar plea was taken by his brother Tapan Kumar Dey that the learned Judge rejected.
Ms.Smita Das De appearing for the Official Liquidator would support Mr.Ghosh.
We have considered the rival contentions. The law is clear on the issue. In the matter of winding-up the learned Company Judge has wide power including the power to deal with a situation of a like nature. Section 446 would extend the power to the learned Judge in addition to other provisions of the corporate law. It is true, Mr.Chakraborty did not get any opportunity to file affidavit. It is also true, the learned Judge did not place it for trial on evidence. A controversy would arise only when parties would join issue on any factual or legal question. If we 5 take what Mr.Chakraborty would submit as recorded above on its face value, we do not find any scope to extend any relief to him as law would not support him.
The company went in liquidation in 1974. The law would provide, all properties belonging to the company in liquidation would be in deemed possession of the Official Liquidator. Mr.Chakraborty would submit, the erstwhile director has put him in possession. When a company goes in liquidation the status of an erstwhile director qua the company in liquidation would be very much vulnerable. In any event Mr.Chakraborty could not rely upon any document to support him. Even if what he has said was correct that would place him no where.
The due process of law would also include Section 446 of the Companies Act, 1956. Mr.Chakraborty would submit, the Court of Appeal asked the Official Liquidator to clear the trespass and then sell it. We do not know why the Official Liquidator permitted him to stay. However, it does not give him any right to continue in possession as his very entry was unlawful.
The appeal fails and is hereby dismissed without any order as to costs.
(BANERJEE, ACJ.) (ARIJIT BANERJEE, J.) sd/