Jharkhand High Court
Ms Incab Industries Ltd Through ... vs Saligram Sons Represented By Its ... on 25 April, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.955 of 2016
M/s INCAB Industries Ltd. through authorized
Signatory cum Incharge of Jamshedpur Works
Shri Prem Sagar Singh, Cable Town, Golmuri,
Jamshedpu, East Singhbhum ....... Petitioner
Vrs.
Saligram Sons, a proprietorship firm being
represented by its proprietor, Sri Harishankar
Agarwal, North Bistupur, Jamshedpur, East Singhbhum
..... Respondents
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH
For the Petitioner : M/s Rajeev Sharma, Sr. Advocate, Manoj
Kumar, Advocate
For the Respondents :
02/25.04.2016Heard learned counsel for the petitioner.
2. Petitioner is the Judgment Debtor in Eviction Suit No. 16 of 2006 decided on 26.5.2008 by the Court of Additional Munsif, Jamshedpur(Annexure-3) on contest, decree is also dated 26.5.2008. In the execution case no. 12/2014 prosecuted by the Decree Holder, petitioner sought stay by filing a petition under Section 151 of the Civil Procedure Code inter-alia stating that the petitioner- company is a sick company under the process of revival before the Board for Industrial and Financial Reconstruction(BIFR) under the Sick Industrial Companies(Special Provision) Act, 1985. There is an order of status-quo in W.P.C. No. 942 of 2007 by the Hon'ble Delhi High Court relating to the assets and properties of the company. It is submitted that petitioner however has preferred Miscellaneous application no. 183 of 2015 before the learned Court below for restoration of the eviction suit contending that the suit was decided ex-parte. This misc. petition was preferred when the Judgment Debtor found that attempts are being made to take forcible possession of the property of the company in the execution proceeding by the land lord - respondent, herein. A plea has been taken on the part of the petitioner that pending consideration of proposal for revival of the petitioner- company before the BIFR and AAIFR, proceedings for eviction of the -2- petitioner by the respondent- land lord should be stayed in terms of Section 22 of the SICA Act,1985 and also the status-quo order passed by the Delhi High Court in W.P.C. No. 942 of 2007. It has been urged that till the adjudication on the misc. case, the learned Executing Court should have stayed the proceedings as otherwise petitioner would be unjustifiably evicted from the suit premises.
3. I have considered the submission of the petitioner and gone through relevant materials on record. The suit property described in the schedule referred to in the judgment and decree are two shop rooms namely shop no.2 and 3 Opposite of the cable Dispensary and gate no.2 of the company just beside the shop no.1 situated at Cable Town, Golmuri, Jamshedpur, East Singhbhum with boundaries of adjacent premises / property described therein. The suit for eviction was instituted by the land lord / respondent herein for violation of the terms of the tenancy and failure by the tenant to make payments of arrears of rent despite notice. The plaintiff also claimed recovery of possession of the suit premises by evicting the tenant / Defendant there in and also for release of arrears from June 2003 to May 2006 @ Rs.300/- per month.
4. As it appears from perusal of the judgment, Defendant no. 1 and 2 appeared on 30.4.2007 through their counsel and after seeking an adjournment for filing written statement, failed to file written statement within stipulated time, as a result of which they were debarred from filing the same on 6.8.2007. As has been noticed herein above, the judgment and decree was passed on 26.5.2008 by the learned Trial Court and the judgment debtor has instituted a Misc. Case under order 9 Rule 13 of the C.P.C only in 2015. This show lack of diligence on the part of the petitioner to lay any challenge to the decree or to take steps for restoration of -3- eviction suit itself for almost 7 years.
5. On the other hand the legal issue on the subject relating to protection under the provisions of SICA Act, 1985 under a situation where a eviction is sought by the Landlord under the Rent Act on the ground of non payment of rent is well settled by the Apex Court in a judgment rendered in the case of Gujarat Steel Tube Co. Ltd Vrs. Virchandbhai B.Shah & others reported in 1999(8) SCC 11 and have also been considered in recent judgment rendered in Civil Appeal No. 614 -615/2016 in the case of M/s Madras Petrochem Ltd. and another Vrs. BIFR and others dated 29.1.2016 by the Apex Court. For better appreciation, the relevant para 9 to 11 of the judgment in the case of Gujarat Steel Tube Co. Ltd(supra) is quoted herein below:-
"9. Section 22 no doubt, inter alia states that notwithstanding any other law no suit for recovery of money shall lie or be proceeded with except with the consent of the Board, but as we look at it the filing of an evicting petition on the ground of non-payment of rent cannot be regarded as filing of a suit for recovery of money. If a tenant does not pay the rent, then the protection which is given by the Rent Control Act against his eviction is taken away and with the non- payment of rent order of eviction may be passed. It may be possible that in view of the provisions of Section 22, the trial court may not be in a position to pass a decree for the payment of rent but when an opportunity to the tenant to pay the rent failing which the consequences provided for in the sub-section would follow. An application under Section 11(4), or under any other similar provision, cannot, in our opinion, be regarded as being akin to a suit for recovery of money.
10. We may also point out that this Court in Shree Chamundi Mopeds Ltd. had occasion to consider the question as to whether an application for eviction under the Rent Control Act was maintainable notwithstanding the provisions of Section 22 of the Sick Industrial Companies Act. It was held that on the termination of the contractual tenancy, the Karnataka Rent Control Act, with which the Court was concerned in that case, gave protection to a statutory tenant to continue to occupy the premises but the said right could not be regarded as property of the Company for the purpose of sub-section(1) of Section 22 of the Act. The Court held that the provisions of Section 22(1) were not applicable to the eviction proceedings instituted by the landlord against the sick company. It appears to us that the aforesaid principle would be clearly applicable in the present case and appropriate orders could be passed under the relevant provisions -4- of the Rent Control Act.
11. The High Court and the Appellate Bench of the Small Cause Chief Court were, therefore, right in coming to the conclusion that the provisions of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 did not in any way prevent the filing of an eviction petition on the ground of non-payment of rent and that the order under Section 11(4) of the Bombay Rent Act could be passed".
6. Both on the point of law and the relevant material facts, which show lack of diligence on the part of the petitioner to lay any challenge to the judgment and decree passed in the eviction suit on 26.5.2008, petitioner has failed to make out a case for interference. He has no justifiable ground to seek abeyance of the execution proceeding being pursued by the decree holder, land lord / respondent herein.
7. This Court does not find any error of jurisdiction of the learned Court below so as to warrant interference under Article 226 and 227 of the Constitution of India. The writ petition is accordingly dismissed. I.A. No.2394 of 2016 for stay of the execution proceedings also stands rejected.
(Aparesh Kumar Singh, J.) A. Mohanty