Calcutta High Court
Wellman Wacoma Limited vs Official Liquidator Of M/S. Wellman on 9 February, 2010
Author: Mohit S. Shah
Bench: Mohit S. Shah, Pinaki Chandra Ghose
1
ACO No. 11 of 2010
APOT No. 47 of 2010
BIFR No. 55 of 1998
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Wellman Wacoma Limited
Versus
Official Liquidator of M/s. Wellman
Incandescent (India) Limited (in
Liqn.) & Ors.
For Tivoli Park
Apartment (P) Ltd. : Mr. S. B. Mookherjee, Sr. Advocate,
Mr. Tilak Bose, Sr. Advocate,
Ms. Vijaya Bhartia,
Mr. S. Chowdhury, Advocates
For Official Liquidator: Mr. Susanta Dutta,
Mr. B. Dutta, Advocates
Before :
The Hon'ble Mr. Mohit S. Shah, Chief Justice
The Hon'ble Justice Pinaki Chandra Ghose
Date : 9.02.2010
The Court : Instead of hearing the stay application, we take up the
appeal itself for final hearing by treating it as on day's list.
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This appeal is directed against the order dated 15th January, 2010 of
the Learned Single Judge rejecting the appellant's application, being C.A.
No.298 of 2006, arising out of BIFR Case No.55 of 1998, by which the
appellant had prayed for framing an additional issue.
In the previous round of litigation, as per the order of the Division
Bench, the following issues were framed :
"1. (a) Whether the tenancy of Wellman Incandescent (India) Ltd.
(Now in Liquidation) under Tivoli Park Apartment Pvt. Ltd. was
terminated by surrender or otherwise ?
(b) if so,
i) How was the tenancy terminated ?
ii) When was such tenancy terminated ?
2. (a) Whether there was any creation of a new tenancy by Tivoli
Park Apartment Pvt. Ltd. in favour of Wellman Wacoma Ltd. ?
(b) if so,
i) How was such tenancy created ?
ii) When was such tenancy created ?
The above issues, as aforesaid, were framed by the Appeal
Court on the basis of the pleadings of the parties before it,
namely Tivoli, Wacoma and the Official Liquidator."
3
The order of the Appellate Bench rendered on 13th March, 2008, was
acquiesced into by all the parties and the issues as directed were framed.
Subsequently, the respondent Tivoli Park in its disclaimer application
stated that, "at all material times since 1970 Wellman Incandescent (India) Ltd. until its liquidation was a tenant of Tivoli Park in respect of the premises in question". Wellman Incandescent (India) Ltd. thereafter filed the application for framing an additional issue, which application was rejected. However, finally by the order dated 27th November, 2009 the matter was remanded by the Hon'ble Supreme Court and the Company Court was required to decide whether the following issue should be framed as an additional issue :
"Was Wellman Incandescent (I) Ltd. [`the company'] a tenant under Tivoli Park Apartments (P) Ltd. [`the applicant'] since 1970 until its liquidation in respect of the disputed premises as alleged ? After hearing the learned Counsel for the parties, the Company Court has rejected the application holding as under :-
"In my opinion, on the basis of the respective pleadings of the parties, namely Tivoli and Wacoma and having regard to the issues already framed by the Appeal Court by its order dated 13 March 2008 I do not think that the issue as suggested by Wacoma with or without any amendment thereof is at all necessary or relevant for an effective adjudication of the proceedings before me and for the purpose of reaching a right decision thereon.4
Thus the prayer of Wacoma for framing the "additional issue" is refused."
Having heard the learned Counsel for the parties, we agree with the reasoning and conclusion of the Learned Single Judge. No interference of this Court is called for against the impugned order of the Learned Single Judge refusing to frame the additional issue, referred to hereinabove.
The appeal is, accordingly, dismissed.
The connected application is also dismissed. Urgent photostat certified copy of this order be supplied to the parties, if applied for, upon compliance of all requisite formalities.
(Mohit S. Shah, CJ.) (Pinaki Chandra Ghose, J.) SN.
Asst.Registrar(CR)