1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.186 OF 2005 IN COMPANY PETITION NO.900 OF 2004 Shri Chetan B. Desai .. Petitioner Vs. Shri Pannalal Vanechand Jain .. Applicant And The Official Liquidator, High Court, Bombay .. Respondent Mr.P.K.Dhakephalkar, Sr.Advocate a/w Mr.M.Jamdar for the petitioner Mr.N.Kamble i/b Mr.A.M.Saraogi for the respondent Mr.S.Ramakantha, Dy. Official Liquidator present CORAM : S.C.DHARMADHIKARI, J CORAM : S.C.DHARMADHIKARI, J CORAM : S.C.DHARMADHIKARI, J DATED : 6TH JUNE, 2008 DATED : 6TH JUNE, 2008 DATED : 6TH JUNE, 2008 P.C.: 1. This Company Application is by the applicant, Shri Pannalal Vanechand Jain seeking a direction to the Official Liquidator who is appointed as Provisional Liquidator to break open the seal of the premises and hand over vacant 2 possession thereof to the applicant. The premises are more particularly described in prayer clause (a) of the Company Application. 2. The applicant claims to be a tenant in respect of these premises and states that the respondent company was inducted in the same as a licensee pursuant to a Leave and Licence agreement dated 06.05.2002 for 11 months. The applicant claims that one Mr.Sharma is the owner / landlord and the applicant has been inducted as a tenant therein. The Company was operating its office till August 2004. It is contended that the Leave and Licence agreement expired by efflux of time but the Company was claiming to be in possession. 3. The contention of Mr.Dhakephalkar, Sr.Counsel appearing for the applicant is that the Company Petition itself is an collusive proceeding. It is an abuse of the process of the Court. The petitioner, Shri Chetan Desai is the brother of one Mr.Sanjay Desai who claims to be the Director. The Company owes to the original petitioner allegedly a sum of Rs.47,500/-. At the stage of admission of 3 the petition, it was stated that the said company is unable to pay the sum and that is how the court proceeded to admit the petition. The Liquidator was appointed as Provisional Liquidator and after he took possession of the premises and sealed the same, the applicant became aware of the entire proceeding and that is how the Company Application has been moved. 4. The application is opposed by the original petitioner. There is an affidavit filed in reply and the said petitioner, Shri Chetan Desai has alleged that the application itself is a fraud on the court. The facts according to the original petitioner are that the present applicant, Shri Pannalal, son of Shri Kamlesh Jain is one of the director of the respondent company. The son and father are in collusion and connivance with each other. They have prepared anti-dated document which allegedly shows that the premises have been let out by the applicant to the company on leave and licence basis. Thus, the rent receipts are not genuine. The Company has filed an affidavit of one Sanjay Bhanuprasad Desai and it is stated therein 4 that the Company has paid huge amount to the owners for acquiring the tenancy rights. The amount was paid from the funds of the Company. However, son of the present applicant has control over all accounts and documents of the Company. He has removed the original rent receipts from the records of the Company and in collusion with the father has filed the present application. 5. The official Liquidator has filed an affidavit and stated that the possession was taken on 03.09.04. The inventory was prepared of the articles and it is stated by the Liquidator that the furniture and fixture belong to the landlord. The Official Liquidator has stated that the remedy of the applicant is to establish his title to the premises. He will have to seek appropriate relief. These proceedings is not the remedy for the applicant to assert his right in the premises, more so, when the Company is in possession of the premises assuming that the Leave and Licence agreement has expired. The Dy.Official Liquidator who is present informs me that about 250 claims against the company are received in his office. In 5 the Rejoinder affidavit filed by Shri Pannalal Jain, he has purported to annex the Tenancy agreement dated 25.5.99. He has his own version with regard to tenancy, by other firms. He has traced the entire matter to possession of one Neelam Plastic Industries and thereafter deed of partnership, deed of retirement etc. 6. It is clear from the above material that the present application is not the remedy of the applicant even if the landlord/owner is impleaded as party thereto. In these proceedings, this court cannot grant any declaration or relief of entitlement of the applicant to the premises in question. This is not a forum to prove the tenancy right in the premises. Admittedly, the applicant is ascertaining his tenancy rights in the premises and possession of the Company as licensee under the Leave and Licence Agreement. For all these issues be gone into and decided, the Company court is not a forum. It will be open for the applicant to file appropriate proceeding and needless to state that the competent court will go into all the issues uninfluenced by the pendency of the present 6 proceeding (Company Petition) and the fact of the Liquidator having taken possession. It is not as if the applicant cannot implead the Official Liquidator as party to the proceeding. Ultimately, everybody including the Official Liquidator will have to abide by the outcome and result of such substantive proceeding. 7. In my view, perusal of the above material would indicate that contentions issues with regard to the title to the premises cannot be adjudicated and decided in this application. Any observation on merits, once the above conclusion is reached, will only prejudice the applicant. I refrain from expressing any opinion and leave the applicant to initiate appropriate proceeding. 8. Company Application is dismissed. No costs. (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.) (S.C.DHARMADHIKARI,J.)