Calcutta High Court
M/S. Bharat Brakes & Valves Ltd. (In ... vs The O/L on 6 January, 2023
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
ORIGINAL JURISDICTION
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Ravi Krishan Kapur
IA NO.CA/37/2022
In BIFR/526/1992
IN THE MATTER OF
M/s. BHARAT BRAKES & VALVES LTD. (IN LIQN.)
Vs
THE O/L
For the Applicant : Ms. Manju Bhuteria, Adv.
Ms. Meenakshi Manot, Adv.
Mr. Paritosh Sinha, Adv.
Ms. Shrayashee Das, Adv.
Mr. Jisnujit Roy, Adv.
For the Official Liquidator : Mr. Ranajit Chowdhury, Adv.
Reserved on : 21.12.2022
Judgment on :06.01.2023
Ravi Krishan Kapur, J.:
1. This is an application filed under section 535 of the Companies Act, 1956 inter alia seeking disclaimer and handing over possession of an area measuring 6 cottahs 15 chittaks and 15 sq.ft. being a portion of premises no.7A, Dehi, Serampore Road, Kolkata-14 ("the premises").
2. Briefly, the applicant was incorporated on 29 January, 1959 under the provisions of Companies Act, 1956. Prior to change of name, the applicant was known as IRC Weldmish Private Ltd. 2
3. Bharat Brakes & Valves Ltd. was originally promoted by the Central Government with the object of acquiring and taking over the assets and properties of Grisham and Graven of India Pvt. Ltd. from Braithwaite & Company Limited.
4. It is alleged that by a Deed of Conveyance dated 22 September 1959 executed between N. Guin and Co. (Pvt.) Ltd. and the applicant, the applicant became the owner of the entirety of the land measuring approximately 4 Bigahs 6 Cottahs 11 chittaks and 13 sq.ft. including the eastern boundary wall and the buildings and structures situated thereon at premises no.7A, Dehi, Serampore Road, Kolkata-14 (which includes the premises). The applicant has also relied on property tax receipts issued by the Municipal Authorities in respect of the premises.
5. Thereafter, pursuant to a lease agreement dated 15 August, 1960 entered into by and between the applicant and Grisham and Craven India Pvt. Ltd. the premises was given on lease to the company (in liquidation) for a term of 35 years. The lease expired in 1995. The applicant also relies on cheques tendered by the company (in liquidation) as rent in respect of the premises. Upon expiry of the lease, the applicant issued a notice to quit to the company (in liquidation). However, no steps had been taken since the company had made a reference before the Board for Industrial and Financial Reconstruction (BIFR).
3
6. By an order dated 17 June 2003, Bharat Brakes & Valves Ltd. was directed to be wound up. Subsequently, the applicant made enquiries and ascertained that the Official Liquidator was in possession of the premises.
7. By a letter dated 8 November, 2010 the applicant requested the Official Liquidator to deliver possession of the premises to the applicant. Diverse correspondence ensued by and between the applicant and the Official Liquidator. However, the Official Liquidator failed to take any steps with regard to the premises. It is also alleged that no occupational charges have been paid to the applicant by the company (in liquidation) for the last 26 years.
8. The Official Liquidator has filed a Status Report in respect of the company (in liquidation). There is nothing in the Status Report to indicate that the company (in liquidation) is the owner of the premises. In fact, at the hearing held on 26 August, 2022, the Official Liquidator had submitted that save and except the premises all assets of the company (in liquidation) have been sold.
9. Indisputably, the company (in liquidation) is not the owner of the premises. On the other hand, there is no dispute to the right of the applicant as owner of the premises. The premises is in the possession of the Official Liquidator. I also find that the premises is burdened with onerous covenants. No rent or occupational charges whatsoever has been paid to the applicant for the last 26 years. The Official Liquidator does not have any use of any portion of the 4 premises. The lease in favour of the company (in liquidation) has long expired.
10. In this background, the continued possession of the company (in liquidation) or the Official Liquidator in any portion of the premises would be burdensome and against the interests of the company (in liquidation). The premises is burdened with onerous covenants and would attract a monetary claim which would not support in the beneficial winding up of the company (in liquidation). There is no rival claim in respect of the premises. (Wellman Wacoma Ltd. Vs. Tivoli Park Apartments (P) Ltd. (2012) 116 SCL 46, Hongkong and Shanghai Banking Corporation Ltd Vs Official Liquidator. AIR 2008 Cal 35, Ashoka Steel Corporation Pvt Ltd. vs Official Liquidator 1999 (2) CLJ 491).
11. In view of the aforesaid, there shall be an order in terms of prayers
(a) and (b) of Judges Summons.
12. With the aforesaid directions, CA 37 of 2022 stands disposed of.
(Ravi Krishan Kapur, J.)